24 May 2024
Mr John Smith
eSafety ref: FOI 24112
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
Decision on your freedom of information request
I refer to your request to the eSafety Commissioner (eSafety) for access to documents under
the Freedom of Information Act 1982 (FOI Act).
On 24 April 2024, you sought access to:
“The removal notice issued to X Corp on 16 April 2024 in relation to certain class 1 material
(namely the video of the Wakeley stabbing);
The application by the eSafety Commissioner to the Federal Court seeking the removal of the
aforementioned video; and
The interim injunction issued by the Federal Court compelling the removal of the aforementioned
video.
Please include any attached schedules, exhibits, addendums, annexes or similar material. I
object to the redaction of names and personal information of public servants on relevance
grounds.”
(request).
Later the same day, you followed up your request to clarify that you were requesting access
to both “the originating and interlocutory applications, as well as any affidavits”.
Decision
I am authorised under section 23 of the FOI Act to make decisions under that Act.
I have identified eight documents that fall within the scope of your request, which are listed
in the attached schedule.
I have decided that:
parts of documents 1 and 4 are exempt from the operation of the FOI Act under
section 7(2). Relevant parts of these documents have been omitted or redacted
parts of document 4 are exempt from disclosure under section 47F of the FOI Act
and have therefore decided to release this document in part.
I have decided to release all other documents in full.
Email: xxx@xxxxxxx.xxx.xx
The reasons for my decision on this matter are set out in the balance of this letter.
Material taken into account
In making my decision, I have taken the following material into account:
the scope of your request
the content of the documents in scope of your request
orders made by the Federal Court of Australia in proceedings to which relevant
documents relate (NSD474/2024 before Kennett J)
relevant provisions of the FOI Act including sections 7(2) and 47F
advice from eSafety staff
the guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act.
Reasons for decision
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.
Section 7(2) of the FOI Act – Class 1 material
Documents 1 and 4 contain URLs linking to Class 1 material as defined in the Online Safety
Act 2021 (OSA), specifically material depicting matters of crime, cruelty and real violence in
such a way that it would likely be classified RC by the Australian Classifications Board.
Document 4 also contains actual Class 1 material. Confidential annexure TAD-2 to the
affidavit of Toby Allan Dagg affirmed 22 April 2024 comprises a video showing a man being
attacked with a knife in Wakeley, NSW on 15 April 2024 (the video). (The video file itself is not
contained in the PDF document; its place is marked by a placeholder page.)
Each of these is ‘exempt online content scheme material’ as defined in section 4 of the FOI
Act. Section 7(2) and Schedule 2, Part II of the FOI Act together provide that material of this
nature is exempt from the operation of the FOI Act.
I therefore consider that the FOI Act does not apply to this material and eSafety is not
required to disclose this material in response to your request. URLs linking to Class 1
material have accordingly been redacted in documents 1 and 4, and I have not released a
copy of the video file from confidential annexure TAD-2 to Mr Dagg’s affidavit.
Section 47F of the FOI Act – personal privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure
would involve the unreasonable disclosure of personal information of any person.
‘Personal information’ means information or an opinion about an identified individual, or an
individual who is reasonably identifiable (see section 4 of the FOI Act and section 6 of the
Privacy Act 1988 (Cth)).
Email: xxx@xxxxxxx.xxx.xx
Whether a disclosure is “unreasonable” requires a consideration of all the circumstances,
including the nature of the information that would be disclosed, the circumstances in which
the information was obtained, the likelihood of the information being information that the
person concerned would not wish to have disclosed without consent, and whether the
information has any current relevance.1
eSafety must also have regard to the following matters (section 47F(2) of the FOI Act):
(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.
Document 4 is the affidavit of Mr Dagg, General Manager of eSafety’s Regulatory Operations
Group. It sets out the steps taken by eSafety to remove the video from X and contains the
names and contact details of current and former eSafety staff.
I consider that disclosing the names and contact details of current and former eSafety staff
would be unreasonable in the circumstances because they are not well known and
publication of their contact details could reasonably be expected to negatively impact upon
on these individuals, particularly noting the often-contentious nature of eSafety’s work.
Publishing the contact details of eSafety staff carries the risk or unwarranted attention from
members of the public who disagree with the actions of eSafety, carrying a risk of harm to
those staff.
I therefore consider parts of document 4 containing personal information of current and
former eSafety staff to be conditionally exempt under section 47F of the FOI Act.
Public interest considerations – section 47F
Under section 11A of the FOI Act, access to a document covered by a conditional exemption
must be given unless access to the document would, on balance, be contrary to the public
interest.
Section 11B(3) of the FOI Act sets out matters favouring access that must be taken into
account in considering whether release is in the public interest.
For all of the material identified above as conditionally exempt, I consider that disclosure
would generally promote the objectives of the FOI Act and may enhance the scrutiny of
government decision making. I do not consider that there is significant public interest in
disclosing the personal information of individual employees of eSafety, or that disclosure
would add to legitimate public scrutiny of eSafety’s conduct with respect to the removal
notice issued to X Corp. or the related proceedings before the Federal Court of Australia.
Against this, I consider that there is a public interest in maintaining the personal privacy of
eSafety staff, as failing to do so is likely to impact negatively upon those individuals. I
1 Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437.
Email: xxx@xxxxxxx.xxx.xx
consider that the public interest in maintaining their confidentiality outweighs the public
interest in release of this information, and therefore find that release of this information
would not be in the public interest.
I therefore find that parts of document 4 are exempt. In reaching this conclusion, I have not
taken into account any of the ‘irrelevant factors’ set out in section 11B(4) of the FOI Act.
Contempt of court
In addition to the exemptions detailed above:
URLs appearing in documents 1 and 4 linking to class 1 material
confidential annexure TAD-2 to Mr Dagg’s affidavit of 22 April (i.e. document 4), and
names and contact details for eSafety staff appearing in Mr Dagg’s affidavit (document
4) other than Mr Dagg’s name
are currently suppressed by order of Justice Kennett dated 22 April 2024 and 10 May 2024
(as amended on 15 May 2024).
eSafety would be disregarding the Court’s authority if it disclosed this material while these
orders remain in force, which would likely constitute contempt of court. Accordingly, this
material may also be exempt under section 46 of the FOI Act.
Public court file
Lastly, I note that a public online court file is now live for these proceedings2. Each of the
documents being released to you pursuant to this request is now available from the public
court file without fee3. This includes sealed copies of some documents (i.e. bearing the
Court’s seal as proof that they have been accepted for filing).
Redactions appearing in the documents released to you are consistent with, and go no
further than, redactions made to these documents as they appear on the public court file.
Further documents will be made available on the public court file as the proceeding
progresses.
Yours sincerely
Principal Lawyer - Investigations
2 At the time of writing, the online public court file for proceedings NSD474/2024 can be accessed here:
https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/esafety-commissioner-v-x-
corp.
3 Document 1 is not available on the online court file as a standalone document but does appear as annexure 3 to
Mr Dagg’s affidavit affirmed 22 April 2024.
Email: xxx@xxxxxxx.xxx.xx
Attachments
1. Schedule of documents
2. Rights of review
Email: xxx@xxxxxxx.xxx.xx
ATTACHMENT 1: SCHEDULE OF DOCUMENTS
Number
Date
Description
Decision on access
Exemptions or deletions
Release in full; material
Removal notice issued under s 109 of the Online Safety
1
16/04/2024
not subject to the FOI Act s 7(2)
Act 2021 (Cth) to X Corp.
redacted
2
22/04/2024
Originating application
Release in full
3
22/04/24
Concise statement
Release in full
4
22/04/2024
Affidavit of Toby Allan Dagg
Release in part
s 7(2), s 47F
5
22/04/2024
Interlocutory application (non-publication)
Release in full
6
22/04/2024
Submissions on interim relief
Release in full
Affidavit of Acting Assistant AFP Commissioner Stephen
7
22/04/2024
Release in full
Thomas Nutt
8
22/04/2024
Interim orders of Justice Kennett
Release in full
eSafety.gov.au
