Dear Children’s eSafety Commissioner,

Under the provisions outlined in the Freedom of Information Act of 1982, I would like to request the following from July 01 2021 until September 24 2021:

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"

This FOI has been created as the eSafety commissioner deleted her tweet[1] about appearing on the NCOSE podcast.[2]

Regards,
Eliza Sorensen

[1] https://twitter.com/hayleyglyphs/status/...
[2] https://www.xbiz.com/news/261832/austral...

Dear FOI Coordinator,

Thank you very much for your response. This understanding is correct.
I understand that if I'm to incur any charges that I will be notified before esafety will move forward.

Regards,
Eliza Sorensen

Dear FOI Coordinator,

Thank you for your response.

The request listed is correct and I understand that a representative of eSafety will contact me if any charges apply to this request.

Regards,
Eliza Sorensen

REQUEST FOR REVIEW

Under the Freedom of Information Act 1982 ("the FOI Act"), I formally request an internal review of the decision in my FOI request of 24 September 2021 relating to information about NCOSE and other topics.

Throughout this request, I also refer to the Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (“the Guidelines”), which a decision-maker is required to have regard to under section 5A of the FOI Act.

HISTORY OF REQUEST

On 24 September 2021, I made an FOI request of the Office of the eSafety Commissioner ("the Office"), relating 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".

This request was primarily prompted by the appearance of the eSafety Commissioner on the "Ending Sexploitation Podcast", which was hosted by and promoted by the US-based anti-porn religious group NCOSE, formerly known as Morality in Media, and by the Commissioner's decision to subsequently promote that appearance in a Tweet on her personal Twitter account, and shortly thereafter delete the Tweet.

The original deadline for responding to this request would have been 23 October 2021.

On 8 October, in correspondence with the Office, my request was further narrowed to "emails and correspondence from the eSafety Commissioner, Julie Inman Grant", and excluding news articles or publicly available information, covering the period 1 July 2021 to 24 September 2021. This narrowing was done to assist the Office to efficiently identify information and avoid wasting the Office's time unnecessarily.

On 21 October, the Office advised that the scope of the request included personal information about third parties, and that the Office was requesting an extension of time in order to seek submissions from those parties about the release of their information. At this time the Office advised that the time for the request would be extended by 30 days "to 24 November 2021". They did not cite their legislative power to make this extension, but did reference sections 47F, 47G, 27 and 27A of the FOI Act. They did not seek agreement from me as to this extension, nor did I agree to it. They did not advise as to whether they had contacted the Information Commissioner in relation to this extension.

On 22 November 2021, the Office provided a formal decision in relation to my FOI request, and released five documents, titled "Document 1" through to "Document 5". The documents provided included significant censorship and editing. The decision named several legislative provisions used to justify the censorship, but did not specify which provisions related to which edits. The document further declares that the time period for the request would have expired on 24 November, as a result of a previously noted extension relating to section 15(6) of the FOI Act.

A further “Document 6” was identified, but declared to be wholly exempt on grounds of s45 of the FOI Act, relating to material provided in confidence.

GROUNDS OF REVIEW

I wish to seek a review of the decision on the following ten (10) primary grounds.

1) Extension of time was invalid

The Office's assertion that the time to deliver the request was extended is incorrect and invalid.
The notice of extension of time did not take the proper form, and did not meet the formal requirements of the FOI Act.

I note and accept that it is hard to identify any material relief that can be obtained if this ground is upheld, but it provides context to the other grounds of objection.

The Officer's contention that an extension of time was granted, and that time therefore expired on 24 November 2021, relies on its emails of 21 October and 22 November.

The 22 November email asserts that an extension of time was granted under subsection 15(6) of the FOI Act, by way of its email of 21 October, and that the period of this extension is 30 days, with a resulting expiry on 24 November.

The 21 October email does not refer to subsection 15(6) of the FOI Act, but does refer to sections 47F, 47G, 27 and 27A.

Section 47F of the FOI Act provides that a document may be conditionally exempt where it involves the unreasonable disclosure of personal information about any person, under certain conditions.

Section 47G provides similar exemptions relating to the information concerning the business or professional affairs of a person, where the release may impact the business or profession of that person or prejudice their supply of information to the government.

Sections 27 and 27A provide that an agency must notify people whose data is contained in an FOI request and who may wish to raise a section 47F or 47G objection in relation to that information, and give them adequate time to respond.

Section 15(6) provides:

Where, in relation to a request, the agency or Minister determines in writing that the requirements of section 26A, 27 or 27A make it appropriate to extend the period referred to in paragraph (5)(b):

(a) the period is extended by a further period of 30 days; and

(b) the agency or Minister must, as soon as practicable, inform the applicant that the period has been so extended.

Please note the section 15(6) is only enlivened where an agency determines in writing that the provision is enlivened.

(a) This determination is an administrative decision, and must take the form of an administrative decision, referring to the evidence taken into account in making the decision, the relevant legislative provisions, and the process of reasoning by which the decision was made.
(b) It must refer to section 15(6) of the FOI Act, being the power under which the determination is made.
(c) It must be made by a named individual, and state the authority under which they are empowered to make the determination.

The email of 21 October does not meet any of these criteria, and thus the extension of time power was never enlivened, and no extension of time was granted. No part of the email was identified as a determination under section 15(6), no reasons or evidence were given, and section 15(6) was not referred to. The email was signed “FOI Coordinator”, and no reference to authority or delegation to make such a decision was given.

Therefore a response was due on 25 October 2021 (noting that the 24th was a Sunday), and the eventual documents were delivered nearly a month overdue.

As a result, the “deemed decision” provisions for overdue requests are engaged - see Guidelines 3.150 to 3.155 - which do not have direct bearing upon this immediate request for review, but may have consequences if the matter eventually goes to a further level of review.

2) Section 47F decision did not refer to relevant evidence or give sufficient reasons

The purported extension of time referred to in Ground 1 above came about because the Commissioner chose to seek submissions from third parties as to the release of their personal information.

The final decision relies upon section 47F to omit various personal details from the documents disclosed.

However, the decision does not provide, nor refer to, the evidence received from those third parties as to the release of their information. The decision maker is required to include those submissions in their decision, to the extent possible without disclosing information which is itself exempt, and specifically note how they regard those submissions and how they took them into account in making the decision.

I refer you to 6.167 to 6.172 of the Guidelines, which provide, inter alia, that the submission of a third party as to whether a section 47F exemption applies:
* should be in writing;
* should refer to reasons and evidence; and
* does not of itself enliven a section 47F exemption, without a further decision of the agency, balancing the submission against other factors.

A phone call to a relevant party is not sufficient to enliven a section 47F exemption. Nor can the decision-maker merely refer to the existence of a 47F submission without explaining their treatment of that submission and how they have balanced it against other considerations outlined in the FOI Act.

The decision should have included the written submissions received from third-parties, possibly with personal information redacted, and specifically referred to how the decision-maker weighed these submissions against other relevant factors, including the public interest.

I refer you to 3.172 of the Guidelines, which provides:

"When referring to material or evidence it is important to describe it so it can be easily
identified. Merely providing a list of documents that the decision maker considered is
unlikely to be sufficient. The decision maker needs to explain how each finding was
rationally based on the evidence."

I further refer you to 3.173, which provides:

"The statement of reasons should also set out how any conflicting evidence was considered, which evidence was preferred and why. If the decision maker considered recommendations or reports in making their decision, references to those should also be Included."

And finally, I refer you to 3.179, which provides:

"Where a document is released with deletions under s 22, the grounds on which the deletions have been made should be provided, setting out the findings on material questions of fact and referring to the evidence or other material on which those findings were based (see [3.100] above)."

Further, the reasons provided must be specific to the particular information claimed by the exemption, and refer specifically to the release of that particular information. A blanket declaration as to releases of information generally “harming the interests of an individual or group of individuals” is not sufficient to enliven the section. The decision maker must explain how this disclosure harms these specific groups or individuals.

Further, section 47F(2) requires the decision-maker to take into account further matters, including;

(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 matters dealt with in the document;

(c) the availability of the information from publicly accessible sources;

(d) any other matters that the agency or Minister considers relevant.

Some of the redacted names in the released documents appear to be the contact emails of officers of NCOSE, including potentially the host of the podcast the Commissioner appeared on. They appear to be speaking in their professional capacity as public officers of that organisation. These names and contacts are a matter of public record, and as such they should have been released.

The section 47F exemption claimed is therefore invalid, and the material redacted by reason of section 47F should be disclosed.

(For the sake of clarity - the applicant is not seeking the names or email addresses of any officer of the Office of the eSafety Commissioner other than the Commissioner herself, and agrees that the names of individual public servants should be redacted where there is not a specific and compelling reason to identify them. However, the applicant contends that the names and emails of public officers of NCOSE should be released, and that public servants should be identified throughout the release by their job titles (see below).)

3) Section 47F redactions should be replaced by metadata, and signature blocks should be disclosed

In keeping with the principle of releasing the maximum FOI information possible to the public, and facilitating public understanding of the information released, the applicant contends that the names of public servants that have been redacted on 47F grounds should be replaced by a notation of their job title, to make the context of the information provided more clear.

A job title is a matter of public record, and not an item of personal data, and it cannot be exempted under section 47F.

That information should have been included in the signature block of every email included in the released documents, but because of the way those emails have been delivered, the signature blocks appear to have been omitted in several of the released documents - possibly in a laudable attempt to provide efficiency and clarity.

However, those signature blocks do fall within the scope of the request, and to the extent they have not already been provided, they should be disclosed, with no redactions save for the personal names of public servants involved.

I refer you to the case of Taggart and Civil Aviation Safety Authority (Freedom of information) [2016] AATA 327, where Deputy President Forgie ruled that material that was not the substantive content of privileged documents, such as the email subject line, address block, salutation, classification, closing words and signature block was not automatically covered by exemptions and was required to be provided where it otherwise fell within the scope of a request.

(These signature blocks do appear in an appropriate format in e.g. Document 3, but are missing from portions of Documents 1 and 4.)

4) Public interest not sufficiently taken into account

The decision states, “I have considered that disclosure is generally considered to promote the objects of the FOI Act and can enhance the scrutiny of government decision making.”

This is the only reference in the decision to public interest factors in favour of disclosure.

The decision-maker therefore failed to take into account public interest factors specific to the particular information sought in the disclosure, such as:
* The public interest in potential ties between the Commissioner and foreign religious extremist groups.
* The public interest in the significant reforms the Commissioner is overseeing in Australia’s online environment, many of which had public consultation periods closing within the timeframe of this FOI request, which would potentially have been informed by the material requested.
* The fact that the Commissioner was specifically and personally questioned on the subject matter of this request by the Senate Environment and Communications Committee on 26 October 2021, evidencing the high level of public interest in scrutiny of this specific topic.

I refer you to 3.177 of the Guidelines, which provides:

"If the decision is to refuse access to a conditionally exempt document, the reasons must include any public interest factors the decision maker took into account (s 26(1)(aa)). In considering the public interest factors, the decision maker must weigh factors for and against disclosure to determine whether access would, on balance, be contrary to the public interest (see Part 6 of these Guidelines). Evidence of the harm that may result from release would need to be considered as part of that process."

By failing to consider potential specific public interest provisions relevant to this request, the decision-maker failed to properly enliven any exemption provisions that require a public interest test, and therefore the claimed exemptions are invalid.

This applies to all legislative grounds claimed for exemption in the decision, and as a result all the claimed exemptions are invalid, and the documents should be fully unredacted and disclosed.

5) Redacted information not sufficiently identified by reference to legislative authority

It is not sufficiently clear what redacted information in each document relates to each ground of claimed exemption. For each redaction, the decision-maker is required to specifically enumerate all the legislative grounds under which an exemption is claimed.

It is not sufficient to say “parts of document 4 are exempt due to s47E(d) of the FOI Act”. The specific parts for which that exemption is claimed must be specifically identified.

Likewise, while it in some cases clear what material is claimed under the s47F objection - such as the names and email addresses throughout much of the material - the decision-maker is nevertheless required to specifically note that this is the basis for each redaction.

Where material is potentially exempt under multiple grounds of exemption, this must also be noted.

6) Section 45(1) exemption for “Document 6” is invalid on multiple grounds

The claimed exemption for Document 6, relating to confidentiality, is invalid on multiple grounds, including:

* The decision-maker provides no process of reasoning for coming to this decision.
* The decision-maker provides no evidence considered in coming to this decision.
* The decision-maker does not take into account whether the document is exempt from s45 by virtue the grounds laid out in s45(2).
* Upon determining that a document is an exempt document, the decision-maker is required to make a further determination as to whether that document should be nevertheless released. The decision-maker has not turned their mind to this question, and no decision either way has been made.
* The decision-maker does not take into account public interest considerations in favour of the document’s release.
* The decision-maker does not provide metadata or non-exempt material relating to the document (see Taggart and Civil Aviation Safety Authority (Freedom of information) [2016] AATA 32, referenced at ground 3 above.)

Therefore the claimed exemption for Document 6 is invalid, and the document should be disclosed.

7) Section 47E(d) exemption is insufficiently specific and therefore invalid

The Office claims a section 47E(d) exemption in relation to certain aspects of Document 4.

Section 47E(d) of the FOI Act provides that an exemption applies where the release would “have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.”

I refer you to 5.19 to 5.21 of the Guidelines, which provide, inter alia, that:

* The substantial and adverse effect must be specific and identifiable, and not hypothetical.
* The effect must be “substantial”, in the sense of “loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal’.
* Quote: “A decision maker should clearly describe the expected effect and its impact on the usual operations or activity of the agency in the statement of reasons in order to show their deliberations in determining the extent of the expected effect”.

I further refer you to 6.101 to 6.013 of the Guidelines, which provide, inter alia:

* “The predicted effect needs to be reasonably expected to occur. [...] There must be more than merely an assumption or allegation that damage may occur if the document were to be released.”
* “An agency cannot merely assert that an effect would occur following disclosure. The particulars of the predicted effect should be identified during the decision making process, including whether the effect could reasonably be expected to occur. Where the conditional exemption is relied upon, the relevant particulars and reasons should form part of the decision maker’s statement of reasons.”

Further guidance comes at 6.120:

* “An agency’s operations may not be substantially adversely affected if the disclosure would, or could reasonably be expected to lead to a change in the agency’s processes that would enable those processes to be more efficient.”

And 6.123:

* “The predicted effect must bear on the agency’s ‘proper and efficient’ operations, that is, the agency is undertaking its expected activities in an expected manner. Where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the conditional exemption will not apply.”

(To the extent that the Commissioner should never have met with NCOSE, or appeared on their podcast, or promoted their podcast, it is hard to see how any document relating to that appearance bears upon the agency’s “proper and efficient” operations.)

The decision in relation to s47E fails to identify any specific substantial adverse effect upon the agency resulting from disclosure of this information. Nor does it disclose a reasoning process by which it came to that decision. Nor does it take into account and consider any of the various grounds under which this exemption may be invalid.

As a result, the decision in relation to s47E exemption is invalid, and the redacted information should be disclosed.

8) Portions of document 2 redacted without a claimed exemption

Portions of document 2 have been redacted, but the decision does not identify any legislative grounds for these redactions.

Specifically, a portion on page 1 following the words “each of these milestones” has been redacted. It does not appear to be a reference to personal information, and the s45 and 47E exemptions are claimed to apply only to documents 6 and 4, respectively.

It is unclear on what basis this information is redacted, and accordingly it should be disclosed.

9) Nature of search insufficiently described

In searching for documents meeting the scope of this FOI request, the decision-maker should have identified what records or archives were searched, what processes were used to identify potentially matching documents, and what assistance or advice was received in relation to this search.

This information is required because the decision-maker is required to make a determination as to which documents in the possession of the agency may fall within the scope of the request, and in making that decision the decision-maker is required to have regard to relevant evidence, and provide that evidence to the applicant via their decision.

10) Documents falling within scope insufficiently described

The six documents deemed to fall within the scope of the request are insufficiently described. The decision-maker should have provided a schedule identifying the documents by reference to factors such as:
* Their date;
* Their author;
* A general description of their contents and context;
* The record or database they were retrieved from;
* A specific itemisation of any exemptions claimed in relation to the document.

This itemisation is required by:
(a) The general principle requiring the provision of all information relevant to the scope of the request that is not specifically exempt;
(b) The general principle requiring the agency to aid the applicant in understanding the material provided;
(c) The requirement to specifically identify all claimed legislative provisions relating to each redaction or exemption;
(d) The principle that metadata of a document is not exempt merely because the document itself is exempt;

See 3.170 of the Guidelines, relating to preparing a schedule of disclosed documents.

See also the OAIC’s example “schedule of documents” form for use by agencies in responding to requests, which can be viewed here:
https://www.oaic.gov.au/__data/assets/fi...

SUMMARY

For the reasons above, the applicant asserts that:

(1) The decision in the FOI request was not made within statutory timeframes;
(2) All exemptions claimed in the decision were invalid;
(3) Insufficient information about the disclosed documents were provided; and
(4) All six documents should be fully disclosed, unredacted, including appropriate metadata.

I look forward to your correspondence on this matter,
Eliza Sorensen.

Dear Office of the eSafety Commissioner,

Please accept my thanks to the office, and to Ms Sharon Trotter as decision-maker, for your thorough response (dated 10 January 2022) to my request for internal review of my FOI request relating to the Commissioner's appearance on a NCOSE podcast. I appreciate the work and thought that has been put into this matter under the circumstances of a COVID pandemic and the arrangements of an end-of-year holiday period.

I note that I am entitled to further avenues of review of this decision, including through the Office of the Australian Information Commissioner.

I wish to draw to your attention that there is a significant apellable error in your decision. Specifically, in my request for review, I referred to your failure to take into account relevant public interest considerations in favour of release. Specifically, I referred you to (quote):

1. The public interest in potential ties between the Commissioner and foreign religious extremist groups.

2. The public interest in the significant reforms the Commissioner is overseeing in Australia’s online environment, many of which had public consultation periods closing within the timeframe of this FOI request, which would potentially have been informed by the material requested.

3. The fact that the Commissioner was specifically and personally questioned on the subject matter of this request by the Senate Environment and Communications Committee on 26 October 2021, evidencing the high level of public interest in scrutiny of this specific topic.

In your review of the decision, you set out the specific public interest factors you take into account in making your decision, but fail to consider any of these points. (You do not even, for example, take them into consideration but then assign them zero weight.)

As a matter of administrative law, this omission almost certainly would invalidate your decision on further appeal, both because you have failed to fully consider the matters raised in the request for review, and because you have not then taken relevant matters into consideration in your decision.

Nevertheless, in all the circumstances, and given your indications as to the nature and character of the remaining redacted material, I consider that there is little practical value in exercising any further appeal, and intend to pursue any remaining questions by way of fresh FOI request ather than re-litigation of this one.

You may therefore consider this FOI request concluded.
My thanks again for the time and care you have taken in this matter.

Cheers,
Eliza Sorensen