FOI 25.26 0074 Decision Notice of Decision | FOI release material

Our reference: FOI 25/26-0074 [LEXD 1366]

GPO Box 700 Canberra ACT 2601 1800 800 110 31 August 2026 ndis.gov.au

David Wright

By email: foi+request-13393-9de3bcd6@righttoknow.org.au

Dear David Wright

Freedom of Information request — Notice of Decision

Thank you for your correspondence of 9 July 2025, seeking access under the Freedom of Information Act 1982 (FOI Act) to documents held by the National Disability Insurance Agency (NDIA).

The purpose of this letter is to provide you with a decision on your request.

Scope of your request

You have requested access to the following documents:

“ FOI 24.25 1119, Document 1, states that the NDIA engages external legal providers to undertake an ‘impartial’ investigation into Model Litigant Obligation (MLO) complaints, and to provide advice on whether a breach of the Agency’s MLO has occurred, if required.

For all MLO complaints which were investigated from 1 July 2024 to 30 June 2025, I request:

A list of all the external legal providers engaged by the NDIA to investigate these MLO complaints.

A list of all the external legal providers which were engaged by the NDIA in matters that were subject of these complaints.“

Section 24AB Request for Consultation

On 13 August 2025, we you a request for consultation notice pursuant to section 24AB of the FOI Act. In this notice, we advised that three of your FOI requests had been grouped together for the purposes of section 24(2) as they all related to the same subject matter.

In this notice, we advised our intention to refuse your request, as some parts did not provide enough information to allow us to identify documents, and other parts would substantially and unreasonably divert the resources of the Agency from its other operations due to its size.

You responded to this notice on 14 August 2025, stating:

“Once all fields are entered and submitted for an individual MLO complaint, I imagine this would produce a discrete record on LEX – or what you describe in your response as a ‘main record’. It is copies of these main records to which I seek access. I do not seek access to any linked documents uploaded to the main record, with one exception – field 13 of the form (copies of the ‘Final Determination’). Accordingly, your reference to potentially hundreds of linked records, ‘including file notes, attachments, reminders and other documents’, is not relevant.

As regards which LEX database in which to search, I imagine it would be whatever LEX database receives and stores these ‘main’ records.

As regards personal and protected information, these details can be redacted from any documents provided to me.

I further note that I have requested entries dating from 1 July 2024 to 30 June 2025. FOI 24/25-1962 indicates that in 2024-2025, the NDIA received 56 MLO complaints. I therefore imagine that a search would produce something in the order of 56 ‘main’ records. I would not consider that the work involved in processing this information would substantially and unreasonably divert the resources of the NDIA from its other operations due to its size, especially as I am not requesting any linked records other than the ‘Final Determination’. The work required to screen this limited number of records (excluding attachments) for personal protected information, legal advice and sensitive business information would presumably be far less than the 100 hours that you have estimated.

Please note that if there are multiple ‘draft’ entries submitted by NDIA staff for each MLO complaint using the form at Annexure C, I am only interested in viewing the final completed form, once inputting data has been finalised. I do not wish to seek access to interim, incomplete or draft entries.”

As such, I have considered the original scope and your response to the consultation notice when determining the scope of your request.

Processing Timeframe

The FOI Act provides 30 calendar days for the processing of an FOI request after it is received. As your valid FOI request was received on 9 July 2025, the original due date for your request was 8 August 2025.

On 10 July 2025, you agreed to a 30-day extension of time under section 15AA of the FOI Act, making 7 September 2025 the new date to provide you with a decision on access.

As we were unable to provide you with a decision on your request by the legislated due date, your application is regarded as a deemed refusal under section 15AC of the FOI Act.

Despite this, I have continued to process your application. I apologise for the delay and confirm that you retain your right to seek external review of this decision. Details are set out in Attachment C to this letter.

Search Efforts

The FOI Guidelines provide that agencies should undertake a reasonable search on a flexible and common-sense interpretation of the terms of the request. At a minimum, an agency is required to have regard to the following in undertaking these searches:

the subject matter of the documents
the current and past file management system
the record management systems in place
the individuals and line areas within the agency or minister’s office who may be able to assist with the location of documents
the age of the documents

Having regards to these Guidelines, I engaged in search consultations with the Agency Legal Services Branch under the Chief Counsel Division. This team was previously situated within the former Information Release, Privacy and Legal Operations Branch prior to an organizational restructure.

In response to this consultation, I was provided one (1) document relevant to the scope of your request.

Please note that the document identified in relation to this decision is the same document corresponding to FOI reference 25/26-0073.

Third-party consultation

In processing your request, I determined that it was necessary to undertake consultation with one or more affected third parties under section 27 of the FOI Act.

Under Section 27 of the FOI Act, I must take all reasonably practicable steps to enable an affected third party to comment on, or object to, the potential release of business information about the third party.

I have considered the submissions made by the affected third parties on the release of information, however, I do not agree with some of the contentions made that the document should be exempt in full.

As such, Section 27(7) of the FOI Act outlines that I must not give access to the document unless, after all opportunities of the third party concerned for review or appeal of this decision to give access to the document have run out, the decision to give access still stands, or is confirmed. I note that run out is defined in section 4 of the FOI Act.

Decision on Access to Documents

I am authorised to make decisions under section 23(1) of the FOI Act. My decision on your request and the reason for my decision is set out below.

I have identified one (1) document relevant to the scope of your request. I have decided to:

Grant access to 1 document in part with material removed pursuant to sections 47F(1), 47G(1)(a) and 47E(d) of the FOI Act
Delay access to the document until all the opportunities of the third party concerned for review or appeal of this decision to give access in part to the document have run out, the decision to give access still stands, or is confirmed

In reaching my decision, I took the following into account:

your original correspondence outlining the scope of your request
your response to the 24AB request for consultation notice

the nature and content of the document falling within the scope of your request
the FOI Act
the FOI Guidelines published under section 93A of the FOI Act
documents previously released by the NDIA under the FOI Act
consultation with relevant NDIA staff
consultation with one or more affected third parties
factors relevant to whether disclosure would or would not be in the public interest
the NDIA’s operating environment and functions

Section 22 of the FOI Act

Section 22 of the FOI Act permits an agency to prepare and provide an edited copy of a document where the agency has decided to refuse access to an exempt document or that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access.

I have identified exempt material within the document and am satisfied that it is reasonably practicable to remove this material and release the document to you in an edited form.

The decision in relation to the document is detailed in the schedule of documents at Attachment A.

A statement of reasons for this decision are set out in Attachment B.

Rights of review

My decision is considered an access grant decision as defined in section 53B of the FOI Act, and as your application is regarded as a deemed refusal under section 15AC of the FOI Act, the relevant third party only has the opportunity for a review with the Office of the Australian Information Commissioner (OAIC). I have notified the third party of my decision that the document should be released in part, explained their review rights, and notified them that they have 30 days from the date of this letter should they wish to apply for a review.

I note that the review rights of the affected third party do not impede your review rights, and that you still have the ability to apply to the OAIC for review of my deemed decision.

Your rights to seek a review of my decision, or lodge a complaint, are set out at Attachment C.

Should you have any enquiries concerning this matter, please do not hesitate to contact me by email at redacted.

Yours sincerely

Patrick (PHO293) Senior Freedom of Information Officer Information Access and Privacy Reviews and Information Release Division

Attachment A

Schedule of Documents for FOI 25/26-0073

Document number	Page numbers	Description	Access Decision
1	1-16	LEX Data Date: Matters from 1 July 2024 to 30 June 2025	PARTIAL ACCESS Exemptions claimed: s47E(d) – certain operations of agencies s47F(1) – personal privacy s47G(1)(a) – business affairs

Attachment B

Statement of Reasons

FOI 25/26-0073

REFUSAL UNDER 47F

Personal privacy (section 47F)

Section 47F(1) of the FOI Act states:

A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

The FOI Act shares the same definition of ‘personal information’ as the Privacy Act 1988 (Cth). Paragraph 6.123 of the FOI Guidelines provide that:

Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

(a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in material form or not.

The document relevant to the scope of your request contains personal information of NDIA staff and third parties. This includes, first and last names, email addresses and references to cases with the Administrative Reviews Tribunal (ART).

In my assessment of whether the disclosure of this personal information is unreasonable, I have considered the following factors in accordance with 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; and (d) the affect the release of the personal information could reasonably have on the third party.

I found that the specific personal information contained within the documents:

is not well known

is not available from publicly available sources
would have a negative effect on the individuals if released

Accordingly, I consider that release of the personal information referenced above would be unreasonable and am satisfied that it is exempt under section 47F(1) of the FOI Act.

REFUSAL UNDER 47G

Business Information (section 47G)

Section 47G(1)(a) of the FOI Act states:

(1) A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information:

(a) would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs;

The FOI Guidelines explain, at paragraph 6.181 that:

The operation of the business information conditional exemption depends on the effect of disclosure rather than the precise nature of the information itself. Nevertheless, the information in question must have some relevance to a person in respect of his or her business or professional affairs or to the business, commercial or financial affairs of an organisation or undertaking (s 47G(1)(a))

The Guidelines also state, at paragraph 6.191:

The use of the term ‘business or professional affairs’ distinguishes an individual’s personal or private affairs and an organisation’s internal affairs. The term ‘business affairs’ has been interpreted to mean ‘the totality of the money-making affairs of an organisation or undertaking as distinct from its private or internal affairs’.

The document within the scope of your request contains the name of a business involved in a Model Litigant Obligation (MLO) complaint. I consider this to be the business information of that organisation or undertaking.

I find that it would be unreasonable to disclose the name of that organisation or undertaking, as it may open them up to criticism or queries regarding the complaint that would adversely affect them.

Accordingly, I consider that the release of the information would, or could reasonably be expected to, diminish the commercial value, and is exempt under 47G(1)(a) of the FOI Act.

REFUSAL UNDER 47E(d)

Certain operations of agencies (section 47E(d))

Section 47E(d) of the FOI Act states:

A document is a conditionally exempt if its disclosure under this act would, or could reasonably be expected to, do any of the following:

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of the agency.

The FOI Guidelines, at paragraph 6.115, state:

The predicted effect must bear on the agency’s ‘proper and efficient’ operations, that is, the agency is undertaking its operations in an expected manner.

The document within the scope of your request contains NDIA internal email addresses for various areas of the agency, which are not publicly available. These internal email addresses allow agency staff to identify and communicate with other areas of the agency and are therefore vital to the proper and efficient conduct of the NDIA’s operations.

Because the Agency will lose control of the document once disclosed, disclosing the email addresses under the FOI Act is effectively disclosing them to the world at large. I am satisfied that such disclosure would result in a reasonable likelihood that aggrieved members of the public would utilise them to circumvent appropriate, publicly available points of contact within the Agency. If this were to occur, it would affect the NDIA’s ability to address

grievances and complaints in a structured and efficient manner. Such an outcome would be both substantial and adverse.

Accordingly, I am satisfied that the information referenced above is exempt under section 47E(d) of the FOI Act.

PUBLIC INTEREST FACTORS

Public interest considerations – Section 47E, 47F and 47G

Section 11A(5) of the FOI Act states:

The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.

Irrelevant factors

I have examined the irrelevant factors in section 11B(4) of the FOI Act and I am satisfied I have not taken into account any irrelevant factors in reaching my decision.

Factors favouring disclosure

I have considered the factors favouring disclosure as set out in section 11B(3) of the FOI Act. The relevant factors being whether access to the document would:

(a) promote the objects of this Act (including all the matters set out in section 3 and 3A); (b) inform debate on a matter of public importance; (c) promote effective oversight of public expenditure

In favour of disclosure, I have considered these factors and have determined that disclosure may promote some of the objectives of the FOI Act because providing access allows for increased scrutiny, discussion, comment and review of government held information.

However, I note that the information withheld does not diminish the core content of the documents and would not inform public debate on a matter of importance in any meaningful way.

Factors against disclosure

The FOI Act does not list any factors weighing against disclosure. These factors will depend on the circumstances. However, the inclusion of the exemptions and conditional exemptions in the FOI Act recognises that harm may result from the disclosure of some types of documents in certain circumstances.

Paragraph 6.233 of the FOI guidelines provides a non-exhaustive list of public interest factors against disclosure. The factors I find relevant to this request are that release of this information could reasonably be expected to prejudice:

the protection of an individual’s right to privacy
the interests of an individual or group of individuals
the management function of an agency

While I accept that there will always be a public interest in allowing scrutiny, discussion, comment and review of information held by the NDIA, there are also strong public interests in maintaining an individual’s right to privacy, protecting the right to privacy of organisations and ensuring proper and effective communication within the agency is allowed to continue unimpeded.

As such, I am satisfied based on the above, that the factors against public interest outweigh the factors favouring disclosure, and that, on balance, it is against the public interest to release the information to you. Accordingly, I find that the information is exempt under section 47F(1), 47G(1)(a) and 47E(d) of the FOI Act.

Attachment C

Freedom of Information request – Your review rights

As your request is deemed to have been refused under section 15AC of the FOI Act because of processing delays, you are unable to apply for an internal review of the decision.

However, if you have concern with any aspect of this decision, please contact the NDIA FOI team by email at foi@ndis.gov.au, or by post to:

Freedom of Information Section Information Access and Privacy Branch Reviews and Information Release Division National Disability Insurance Agency GPO Box 700 CANBERRA ACT 2601

Review by the Office of the Australian Information Commissioner

The FOI Act also gives you the right to apply for the Office of the Australian Information Commissioner (OAIC) to seek a review of this decision.

If you wish to have the decision reviewed by the OAIC, you may apply for the review in writing, or by using the online merits review application form which is available on the OAIC’s website: OAIC Review Application Form.

An application to the OAIC must be made within 60 calendar days from the date of the deemed refusal decision, as set out in our letter to you (Notice of Decision). You may also apply to the OAIC for an extension of this timeframe, from the date of the deemed refusal decision until the date of your application for review.

Applications for review can be lodged with the OAIC in the following ways:

Online: OAIC Review Application Form
Post: Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email: enquiries@oaic.gov.au
Phone: 1300 363 992 (local call charge)
Website: www.oaic.gov.au

Complaints to the Office of the Australian Information Commissioner or the Commonwealth Ombudsman

You may complain to either the Commonwealth Ombudsman or the OAIC about the actions taken by the NDIA in relation to your request. The Ombudsman will consult with the OAIC before investigating a complaint about the handling of an FOI request.

Your complaint to the OAIC can be directed to the contact details provided above.

Your complaint to the Ombudsman can be directed to:

Phone: 1300 362 072 (local call charge)
Email: ombudsman@ombudsman.gov.au