Dear eSafety FOI Coordinator,

I am writing to you via the Right to Know website to restate my FOI request of 31 January 2022 relating to social media and other policies of the eSafety Commissioner, which as of this writing has received no acknowledgement of receipt from your office.

This request was made via email to both [email address] and [email address] (being the public contact email addresses of your office) on 31 January. A follow-up was sent by email on 4 February 2022 seeking an acknowledgement. No reply has been received to either email.

This is a formal request under the Freedom of Information Act 1932. Upon consulting your emails and verifying that the original request was received by your office on 31 January, you should consider the starting date to respond to be 31 January. In the unlikely event that neither the original email nor the follow-up reached your office's email folders, you may consider the start date to be today, 7 February 2022.

The request is as follows:

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I am seeking all policy documents, guidelines and procedures that purport to apply to the eSafety Commissioner, employees of her office, or contractors of her office, which were in force at any time between 1 September 2021 and 31 January 2022, relating to:
* communication and media announcements;
* official use of social media by the Commissioner, her office, or media/comms staff;
* process for release of public documents and engaging in public consultation.

This should include both documents formulated within the eSafety Office, and documents created by other government agencies which the eSafety Office applied, circulated to staff, or considered itself bound by.

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I note that I previously requested this information on an informal administrative basis, and received a vague and evasive answer, and the matter could have been resolved at that stage without the need for a formal process if the relevant documents had been provided in that interaction.

Given that these are documents that affect the eSafety Commissioner's office in its daily workflow, I expect you will have them close to hand and will be able to provide them in a very short timeframe, and that it would be notable in itself if some search or exhaustive process were required to locate and provide them.

Please direct all further correspondence to the email address that this request originates from.

Yours faithfully,

Greg Tannahill

Dear eSafety Commissioner,

I write once again seeking acknowledgement of my formal FOI request relating to policies of your office regarding social media and other matters. This FOI request was first made on 31 January, and requests for acknowledgement have been sent on 4 February and 7 February.

As at this writing I have received no reply or acknowledgement.

The FOI Act requires your office to acknowledge receipt of a formal FOI request as soon as practicable, and not later than 14 days.

I await your response.

Yours faithfully,

Greg Tannahill

Dear FOI Coordinator,

Today (11 February) at 11.06 am I received the following email from your office, addressed to my personal email:

"Dear Mr Tannahill,
We have received your FOI request.
We will respond formally on Monday, which is in line with the statutory timeframes.
Kind regards,
FOI Coordinator"

It goes on to quote my FOI request of 31 January.

First: please direct any further correspondence through the email address that this current email originates from, which will preserve the public chain of correspondence on the Right to Know website.

Second: I take this email as formal acknowledgement of your receipt of my FOI request dated 31 January. Thank you. I look forward to a full response to this FOI as soon as practicable, and not later than 28 February.

Third: It appears you are implying you received and saw the request on 31 January, and chose not to acknowledge it until today, and that you further could have chosen to not acknowledge it until 14 February.

Section 15(5) of the Freedom of Information Act 1982 reads:

(5) On receiving a request, the agency or Minister must:
(a) as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received;

The requirement is on the agency to acknowledge receipt as soon as practicable. This requirement is restated in identical terms in the OAIC Guidelines at 1.15. Notably, it is "as soon as practicable" and not "as soon as reasonably practicable", which appears elsewhere in the act. There is no "reasonableness" test. Your statutory requirement is to acknowledge the email as soon as you are able to do so, and you are required to have processes and procedures in place to do so regardless of e.g. individual officers being on leave, or the workload demands of other projects.

If, having received the FOI, your agency made a deliberate decision to not respond earlier than 14 days, it would be in breach of the law.

I further note that under the objectives of the FOI Act, and the requirements of Part 2, the documents I am seeking should *already* be publicly available, AND that they are day-to-day policies of your office which every staff member should be familiar with and immediately able to immediately lay hands on, AND that I requested them on an informal basis before proceeding to a formal request, and that I have taken every step possible to allow your office to dispose of this matter quickly and conveniently without adding to your workload.

I look forward to your prompt resolution of this matter as soon as reasonably practicable, and not later than 28 February, and ask again for further correspondence to be sent via the email address which this message originates from.

With thanks,

Greg Tannahill

Dear FOI Coordinator,

Thank you for your reply.

I wish to clarify the following errors in your understanding of my FOI request.

(1) I *do* require publicly available documents in this instance. The purpose of my request is to identify policies and procedures relating to the subjects identified which eSafety Office considers apply to it and to its activities, not to wade through a wealth of policies and pick out which ones *I* think should apply to you.
The purpose of the request is also to identify policies which may have been in force during the relevant period, in the various forms they took within that period, not to receive a current and amended version of such policies.
As the proper execution of your official functions would require a copy of these policies and procedures close to hand for regular reference, I assume it will be no great imposition to provide me with a copy of them.

(2) You refer to executing the request within the "30-day statutory period". However, the requirements of section 15 of the FOI act provide that the request must be actioned "as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received".
Once again, as this request relates wholly to policies and procedures in daily use within your office, it would be extraordinary if it took you 30 days to action, and would likely not comply with your legislative requirement to action the request "as soon as practicable". The statutory deadline is a fallback position, not a default, and your office does not have a legislative power to defer work on FOIs so as to rely upon the deadline.

With respect to the rest of your communication, yes, you have otherwise understood the scope of my request correctly.

I look forward to prompt provision of the relevant documents.

With thanks,

Greg Tannahill

Dear FOI Coordinator,

Could you please confirm your receipt of my email of 14 February, clarifying the scope of my FOI request relating to social media policies and other communication policies?

Yours sincerely,

Greg Tannahill

Dear FOI Coordinator,

Thank you for your response.

I must confess to some confusion at how a policy or procedure within the scope of this request could contain the personal information of a third-party other than a public servant acting in their official capacity, particularly as these documents do not appear to have fallen within the scope of previous FOIs relating to social media policies.

I note also that the OAIC guidelines provide that for an extension of time under these grounds to be valid, the need for consultation must be identified at an early stage in the FOI process and notified to the applicant at that stage, and the announcement of a need to consult within a week of the statutory deadline may not meet the provisions enabling this power unless the agency can show why the consultation could not have been engaged in and notified at any earlier stage.

NEVERTHELESS, I am happy to agree to have this third-party information redacted, providing the relevant documents are appropriately identified and the redactions appropriately noted, in order to circumvent the need for consultation and allow you to deliver this FOI within normal statutory timeframes. I may then pursue these redacted elements in a further FOI if I feel it is necessary (which at this stage I do not feel is likely).

I therefore look forward to receiving the results of this FOI on or before 2 March.

Yours sincerely,

Greg Tannahill

Dear FOI Coordinator,

Thank you for your reply.

One slight clarification: the *scope* of my request still includes the information of third-parties. The existence and identifying details of these documents should still be included in the schedule of documents matching the request, so that they can be identified for a future FOI, if necessary.

This should be to the extent permissible without needing to consult, even if the result is as vague as e.g. "Document 3: project-specific communications policy, intellectual property of commercial entity third party".

You should still go through the following process:

1) Identify documents that would otherwise fall within the scope of my request.

2) Identify whether any such documents contain any information that a party may reasonably wish to contend (a) is exempt or conditionally exempt for the reasons specified in sections 26, 26A or 27 of the FOI Act (relating to Commonwealth-State relations, business documents, and personal privacy); and (b) the release of which is contrary to the public interest.

(i) (Note OAIC Guidelines 3.77 - there must be some rational basis to believe the information may be prejudicial to the third party. The mere appearance of their name does not enliven these sections.)

(ii) (Note OAIC Guidelines 6.153 and 6.164 - the personal details of public servants, included as a consequence of the regular performance of their job, do not normally enliven the power to redact or the need to consult.)

3) Determine whether it is reasonably appropriate to consult with the third party, having regard to all factors, including the statutory timeframes for processing a request.

4) If, having gone through this process, you come to an administrative decision that there is information that requires consultation, and that that consultation would be reasonable given the timeframes, and that that consultation cannot be concluded within the original 30 day timeframe, then I give my consent to waive that consultation, with the result that the relevant information would be redacted as if the third party had opposed its disclosure and you had acceded to that opposition.

With thanks,

Greg Tannahill

Dear FOI Coordinator,

I know the job of FOI Coordinator must often be a very frustrating one, and I have no insight into what directions or resources are given to you to undertake it, or what other workloads you are processing simultaneously. You have my thanks for your continued diligence in this role, and to the extent I have frustrations and criticisms, you may take them as criticisms of the ability of the eSafety Office to meet its requirements under law, not criticisms of you personally in a position that obviously comes with limitations and restrictions.

Nevertheless, when government enacted the FOI Act, they saw it as a fundamental right of Australians to access the documents of government in an efficient manner, with minimal bureaucracy, for the purpose of government transparency and accountability, and the Act and the OAIC guidelines note on multiple occasions that agencies should act in every way to aid and facilitate this access rather than frustrate and delay it.

I cannot see how any person in Australia is aided by engaging in a consultation process where the results of that process are already obviated, nor can I see how relying on an extension of timeframes to do so is consistent with a good faith effort to resolve an FOI as swiftly and efficiently as possible.

I realise that, as things stand, the statutory timeframes only leave the eSafety Office a further two working days to complete the FOI. However, I also note that your office chose not to reply to my FOI request or seek the clarification necessary to begin work for nearly two weeks after I submitted it, and that there was a further delay from your office of more than a week subsequently, and had that time been better used, these matters might have been resolved at a significantly earlier stage.

Putting aside the matters of principle, there are specific problems with your proposed course.

There are only three outcomes of a consultation process:
- a document is exempt or conditionally exempt, and access will not be given to the applicant;
- a document is exempt or conditionally exempt, but access will nevertheless be given to the applicant;
- a document is not exempt, and access will be given to the applicant.

I am saying that access to the exempt information does not have to be given to the applicant. I consent to the relevant information not being provided to me. Thus the consultation has no relevance and does not need to be engaged in. There is no material change to the outcome that can be effected by such consultation.

Further, in order to reach the stage where you have the power to engage in consultation and trigger that process, you must first identify the document as within scope, and engage in an administrative decision process around that document to see whether the need to consult is enlivened.

I can't agree that documents requiring consultation are not within scope because you (as decision-maker) have to identify them and declare them as within scope to enliven the power to consult on them. It's a circular argument.

Consultation is a process that only applies to documents identified as within the scope of the request. For this issue to have been raised, you have *already* identified these documents as within scope, and have them to hand. You merely need to redact the information that would otherwise require consultation, and provide the remaining material along with a schedule of the redacted material.

I look forward to receiving the results of my FOI on or by 2 March.

Yours sincerely,

Greg Tannahill