10 January 2022
Ms Eliza Sorenson
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Sorenson,
Internal review request under the Freedom of Information Act 1982
The purpose of this letter is to advise you of my decision following your request of
10 December 2021 for internal review of the decision of the eSafety Commissioner
(
eSafety) of 22 November 2021 to refuse access to documents you requested
under the Freedom of Information Act 1982 (FOI Act).
I,
Sharon Trotter, Executive Manager (Acting), am an officer authorised under
section 23(1) of the FOI Act to make decisions in relation to FOI requests.
Decision under review
On 24 September, you sought access to:
‘Any emails and correspondence from the eSafety Commissioner or final documents
that contain the following phrases:
“NCOSE”, “Morality in Media”, “Ending Sexploitation Podcast”, “The National Center on
Sexual Exploitation”.’
eSafety received your request on 24 September 2021. On 21 October 2021, eSafety
advised you that it was undertaking third-party consultations and the statutory time
period for the processing of your request would be extended for an additional 30
days.
On 22 November 2021, you were advised that 6 documents had been found to fall
within the scope of your request. Of these:
• Document 1 was released in full
• Documents 2, 3, 4, and 5 were released with redactions
• Document 6 was found to be wholly exempt
Your internal review request
On 10 December 2021, you requested an internal review of that decision.
In your detailed review request, you made a number of contentions, including:
2
• the extension of time to undertake third-party consultations was invalid;
• eSafety’s reliance on s 47F of the FOI Act is invalid due to a lack of evidence
and sufficient reasoning;
• where s 47F redactions are valid, they should be replaced by appropriate
metadata and individuals’ signature blocks should be disclosed;
• eSafety failed to sufficiently consider the public interest in assessing whether
the conditional exemptions were made out;
• eSafety’s reliance on s 45(1) of the FOI Act to exempt Document 6 is invalid
due to a lack of evidence and reasoning;
• eSafety’s reasons supporting its reliance on s 47E(d) of the FOI Act to
exempt portions of Document 4 are invalid as the decision-maker made an
error of law; and
• document searches and the documents identified as falling within the scope
of the request were insufficiently described.
In making my internal review decision, I have considered:
• the FOI Act (in particular sections 22, 47C, 47E(c) and (d) and 47(F)
• the content of the documents that fall within the scope of your request
• what you have said in your internal review request, and
• the Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (FOI Guidelines).
I have considered your contentions regarding the application of exemptions in
reaching my decision. I do not agree that the extension of time for third party
consultation allowed when the initial decision was made was invalid. In relation to
your concerns regarding search information, eSafety use a centralised document
management system that enables documents to be stored and key terms searched,
and staff who could potentially have documents were asked to check. This is how
the 6 documents were identified. I am satisfied there are no additional documents.
The schedule of documents the initial decision maker provided is in the same form
as the sample schedule you identified in your internal review request and in my view
provides a sufficient description. I have provided a similar schedule.
Decision on review
I have decided to release each of documents 1-5 with redactions and whol y exempt
document 6. For documents 1, 2 and 4, the redactions are the same as in decision
under review. For documents 3 and 5 I have decided to release more text.
Reasons for decision
eSafety staff names and contact details – s 22
The names, email addresses and telephone numbers of eSafety staff (and the
telephone numbers only of the eSafety Commissioner) have been withheld where
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they appear in documents 1 to 5. I understand you do not seek this information so I
have relied on s 22 of the FOI Act for these redactions (information that is
reasonably regarded as irrelevant to the request).
In your internal review request you asked for staff job titles to be inserted in place of
names. Where such information is contained in the documents it has been released
(see for example the title ‘Senior Executive Assistant to Julie Inman Grant,
Commissioner’ in document 3). However, altering the documents to insert
information would take some time and is not required by the FOI Act. I can however
confirm that in each of the cases where the name of the sender or recipient of an
email is fully withheld (such as the redactions beside ‘From’ in the emails of 22
September 2021 at 5.28PM in document 1 and 23 September 2021 at 10.49AM in
document 2) this is because ‘@eSafety.gov.au’ did not appear in the email and in
each case the sender or recipient is an eSafety staff member.
eSafety staff names and contact details – s 47F
Even if you did seek access to names and contact details, I also find the names,
email addresses and telephone numbers of eSafety staff are conditionally exempt
under section 47F.
Section 47F conditionally exempts a document to the extent that its disclosure would
involve the unreasonable disclosure of personal information about any person. The
documents contain names and contact details of staff members. I am satisfied that
information is personal information about them.
If information is personal information, it wil be conditionally exempt if disclosure
would be ‘unreasonable’. In considering whether disclosure would be unreasonable,
section 47F(2) of the FOI Act requires me to take into account:
a) the extent to which the information is well known
b) whether the person to whom the information relates is known to be (or to
have been) associated with the mat ers dealt with in the document
c) the availability of the information from publicly accessible sources
d) any other matter I consider relevant.
I am satisfied that the names and contact details are not well known or publicly
available.
I do not consider that the disclosure of this information would shed light on the
workings of eSafety or enhance accountability or transparency. Further, I find
disclosure would disproportionately interfere with an individual’s personal privacy.
On that basis, I have concluded that disclosure of the information would be
unreasonable and the information is conditionally exempt under section 47F.
I find that these parts of documents are conditionally exempt in part under section
47F of the FOI Act.
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Nonetheless I must give access to the documents unless, in the circumstances,
access at this time would on balance be contrary to the public interest (subsection
11A(5) of the FOI Act).
Conditionally exempt matter must be released unless, in the circumstances, access
to it at this time would, on balance, be contrary to the public interest (section 11A(5)
of the FOI Act). The FOI Guidelines provide at paragraph [6.5] that the ‘public
interest’ test is considered to be:
• something that is of serious concern or benefit to the public, not merely of
individual interest
• not something of interest to the public, but in the interest of the public
• not a static concept, where it lies in a particular matter wil often depend on a
balancing of interests
• necessarily broad and non-specific, and
• related to matters of common concern or relevance to all members of the
public, or a substantial section of the public.
I am also conscious that:
• I must consider the mandatory factors in section 11B(3) in favour of
disclosure and must not consider any of the irrelevant factors in section
11B(4) of the FOI Act, and
• concluding that, on balance, disclosure of a document would be contrary to
the public interest requires determining that the benefit to the public resulting
from disclosure is outweighed by the benefit to the public of withholding the
information (see paragraph [6.27] of the FOI Guidelines).
I consider disclosure of staff names and contacts details would have a negligible
impact on public accountability. On the other hand, I consider disclosure could
reasonably be expected to prejudice the protection of an individual’s right to privacy.
On balance, I have concluded that disclosure would be contrary to the public interest
and the information is exempt under section 47F.
Recommendations about eSafety decision making – s 47C
Page one in document
2 contains a recommendation about media strategy separate
to the content of the email. It forms part of the overall eSafety’s online media
strategy.
The second paragraph on page one of document 4 contains information about
eSafety’s internal strategy about online issues that remains under development and
is not publicly available.
I find the information is deliberative in nature and conditionally exempt under section
47C.
Public interest factors in favour of disclosing this material include that disclosure
would promote the objects of the FOI Act including by increasing scrutiny and
promoting public debate.
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There are a number of public interest factors against disclosure, including:
• release could reasonably be expected to prejudice eSafety’s continued
development of its online media strategy and its strategy regarding its approach to
its regulatory functions
• the public interest in the ability of eSafety to be able to continue to develop its
online media strategies to effectively conduct its regulatory functions.
On balance, in my view disclosure of this material is contrary to the public interest. I
do not consider that its disclosure would make a significant contribution to promoting
the objects of the FOI Act. However I am concerned its disclosure would significantly
harm eSafety’s capacity to manage and develop is online media strategy and
regulatory strategy.
Accordingly, I have decided that this material is exempt from disclosure under
section 47C.
Direct email contact addresses of NCOSE staff – s 47F
While the names of all NCOSE staff in the documents have been released, I have
decided to continue to withhold the first part of their email address (but not
‘@ncose.com’).
Section 47F of the FOI Act provides that a document is conditionally exempt from
disclosure to the extent that it contains personal information, the disclosure of which
would be unreasonable. ‘Personal information’ has the same meaning as in the
Privacy Act 1988, where it is broadly defined, and direct email contact information is
personal information. I have considered the matters set out in s 47F(2) in deciding
whether this direct contact information would be unreasonable. While the fact one of
the individuals is well known (and is publicised on the NCOSE website), I have no
evidence that their direct email contact addresses are, as you have suggested, ‘a
matter of public record’.
In my view it would be unreasonable to release these contact details under the FOI
Act and I am satisfied that this material is conditionally exempt. I acknowledge and
have given weight to the fact that there is a public interest in material in eSafety
documents being made available to the public for the purpose of promoting the
objects of the FOI Act. However, I do not consider that disclosure of the direct
contact details of individuals corresponding with eSafety would significantly advance
these interests or shed light on the workings of eSafety, and consider that there is
minimal public interest in this information being disclosed. By contrast, I consider
there is a strong public interest in the protection of personal privacy.
On the basis I am not aware these direct contact details are publicly available, on
balance I consider disclosure of this information is contrary to the public interest and
it is exempt from release under section 47F.
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Certain material in document 4 - s 47E(c)
Section 47E(c) provides that documents are conditionally exempt if disclosure
would, or could reasonably be expected to, have a substantial adverse effect on the
management or assessment of personnel by the Commonwealth or by an agency.
Document 4 includes, in the first paragraph of the 22 September 2021 3.18PM email
from the eSafety Commissioner to a staff member and in the final paragraph of the
reply email from that staff member of 22 September 2021 at 3.45PM, a separate
exchange relating to a staff matter.
It is apparent this exchange was incidental to the subject of the emails. The
information concerns a staff matter separate to the topic of the emails. In my view,
the disclosure of this exchange under the FOI Act could undermine confidence of
staff that personal information about them wil be kept confidential and inhibit
candour in performance discussions in eSafety in the future. On that basis, I
consider that the release of this material would have a substantial adverse effect on
the management or assessment of personnel by eSafety and that it is conditionally
exempt under s 47E(c).
Public interest factors in favour of disclosing this material include that disclosure
would promote the objects of the FOI Act including by increasing scrutiny.
There are a number of public interest factors against disclosure, including:
• release could reasonably be expected to prejudice eSafety’s staff
management function, and
• the public interest in the protection of personal privacy in relation to
performance issues.
On balance, in my view disclosure of this material is contrary to the public interest. I
do not consider that its disclosure would make a significant contribution to promoting
the objects of the FOI Act, however I am concerned its disclosure would significantly
harm eSafety’s capacity to manage staff effectively and prejudice individuals’ right to
privacy. Accordingly, I have decided that this material is exempt from disclosure
under section 47E(c).
Damage agency operations – s 47E(d)
Document 6 is a submission provided to eSafety on the understanding it was
provided in confidence and would not be made publicly available. The submission
was provided in response to the request for evidence regarding a proposed age
verification system to limit access to online pornography to minors. Relevantly,
eSafety’s submission form states that any submissions provided wil only be used
for internal purposes to help shape the public consultation process and that it wil not
be made publicly available.
On the basis of this undertaking, persons and organisations provide open and frank
submissions in the knowledge that the information they provided is confidential to
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eSafety and wil not be made publicly available. I would be very concerned that
disclosure under the FOI Act would undermine that undertaking and damage the
reputation of eSafety. I would also be very concerned that disclosure would mean
persons and organisations would no longer provide submissions, or would confine
or draft the submissions with a view that they may be made publicly available,
resulting in less candid and valuable information being made available to inform the
strategy and consultation processes of eSafety. I find these consequences to be real
and substantial.
I believe disclosure would limit the level and value of information provided in
submissions in the future, thereby impacting the ability of eSafety to properly and
effectively carry out its consultation and regulatory functions. I consider disclosure
would have a substantial adverse effect on the operations of eSafety and the
information is conditionally exempt under section 47E(d).
Public interest factors in favour of disclosing this material include that disclosure
would promote the objects of the FOI Act including by increasing scrutiny and public
debate.
There are a number of public interest factors against disclosure, including:
• release could reasonably be expected to prejudice eSafety’s reputation and
consultation processes, and
• the public interest in the ability of eSafety to be able to conduct its functions
effectively and efficiently.
On balance, in my view disclosure of this material is contrary to the public interest. I
do not consider that its disclosure would make a significant contribution to promoting
the objects of the FOI Act, however I am concerned its disclosure would significantly
damage eSafety’s capacity to effectively conduct its consultation and regulatory
functions. Accordingly, I have decided that this material is exempt from disclosure
under section 47E(d).
Damage to business affairs – s 47G
Page 12 of document 3 contains business information of the National Centre of
Sexual Exploitation (NCOSE). The information constitutes the business information
of NCOSE. Disclosure to the public under the FOI Act would or could enable the
public to access information for which access would not ordinarily be available.
On this basis I am satisfied disclosure would reasonably be expected to
unreasonably affect NCOSE in respect of its financial and commercial affairs. I find
the information is conditionally exempt under section 47G(1)(a) of the FOI Act.
Public interest factors in favour of disclosing this material include that disclosure
would promote the objects of the FOI Act including by increasing scrutiny.
There are a number of public interest factors against disclosure, including:
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• release could reasonably be expected to prejudice the business affairs of a
third party, and
• the public interest in the protection of confidential and valuable business
information about a third party.
On balance, in my view disclosure of this material is contrary to the public interest. I
do not consider that its disclosure would make a significant contribution to promoting
the objects of the FOI Act, however I am concerned its disclosure would significantly
harm the business af airs of a third party. Accordingly, I have decided that this
material is exempt from disclosure under section 47G(1)(a).
Your review rights
If you are dissatisfied with my decision, you may apply to the Australian Information
Commissioner for review. 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:
onli
ne:https:/ forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode
=ICR_10
email:
xxxxx@xxxx.xxx.xx post: GPO Box 5218 Sydney NSW 2001
More information about Information Commissioner review is available on the Office
of the Australian Information Commissioner website. Go to
https:/ www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/. FOI Complaints
If you are unhappy with the way we have handled your FOI request, please let us
know what we could have done better. We may be able to rectify the problem. If you
are not satisfied with our response, you can make a complaint to the Australian
Information Commissioner. A complaint to the Information Commissioner must be
made in writing. Complaints can be lodged in one of the following ways:
online:
https:/ forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICCA
_1
email:
xxxxx@xxxx.xxx.xx
post: GPO Box 5218 Sydney 2001
More information about complaints is available on the Office of the Australian
Information Commissioner at https:/ www.oaic.gov.au/freedom-of-
information/reviews-and-complaints/make-an-foi-complaint/.
If you are not sure whether to lodge an Information Commissioner review or an
Information Commissioner complaint, the Of ice of the Australian Information
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Commissioner has more information at:
https://www.oaic.gov.au/freedom-of-
information/reviews-and-complaints/. Yours sincerely
SHARON TROTTER
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SCHEDULE OF DOCUMENTS
NUMBER DATE
SIZE
DESCRIPTION
INITIAL
INTERNAL REVIEW DECISION
DECISION
ON ACCESS
ON ACCESS
1
22 September
3 pages Emails between eSafety Staff Released in full Release in part – s 22, s47F
2021
– s 22
2
23 September
28 pages Emails between eSafety staff Released in
Release in part – s 22, s47F
2021
part – ss 22,
47C
s 47C - two sentences on
page one
3
22 June – 16
17 pages Emails between NCOSE and Released in
Release in part – ss 22, 47F
July 2021
eSafety
part – ss 22,
47C
s 47G – page 12
Additional information released
on p
age 3, 4, 5, 7, 8, and 14
4
22 June – 16
5 pages Emails between eSafety staff Released in
Release in part – s 22, s47F
July 2021
part – s 22,
47E(c), 47E(d) S 47E(d) – second paragraph on
page 1
s 47E(c) – 4 sentences on pages
4 an
d 5
5
22 September
1 page Emails between NCOSE and Released in
Release in part – s 22, 47F
2021
eSafety
part – ss 22,
47C
Additional information released
on page one (link)
6
September 2021 9 pages Submission by organisation
Whol y exempt Exempt in full – s 47E(d)
on eSafety's age verification – s 22, 45
for online pornography
roadmap
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Document Outline