I have identified 5 documents, which fall within the scope of your request.

These were identified by the NDIA’s ART Operations team.

I have decided to:

grant access to one document in full;
grant access to 3 documents in part; and
refuse access to one document.

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

your correspondence outlining the scope of your request
the nature and content of the documents falling within the scope of your request
the FOI Act
the FOI Guidelines published under section 93A of the FOI Act
consultation with relevant NDIA staff
factors relevant to my assessment of whether or not disclosure would be in the public interest
the NDIA’s operating environment and functions.

Access to edited copies with exempt or irrelevant material deleted (section 22)

As I have decided that Documents 1, 2 and 4 contain material that is exempt from disclosure under the FOI Act, I have considered whether it is possible to delete the exempt material from the documents and have concluded that it is reasonably practicable to do so.

Accordingly, I have prepared an edited copy of the documents with the exempt material removed.

Reasons for decision

Deliberative processes (section 47C)

Section 47C(1) provides:

A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative process involved in the functions of:

(a) an agency; or

(b) a Minister; or

(c) the Government of the Commonwealth.

“Deliberative matter” does not include operational information or purely factual material.

The NDIA’s operations include doing anything that is incidental or conducive to the functions of the agency as set out in section 118(1) of the National Disability Insurance Scheme Act 2013 (the NDIS Act). I am satisfied that this includes the development, drafting and publication of internal guidance materials for the use of staff performing their employment duties.

Document 3 is the first version of a draft document titled “Standard Operating Procedure: Engaging an Independent Expert Clinician”. It contains comments entered by staff from the NDIA’s Legal, Reviews, Data and Actuarial Group. I am satisfied that it contains deliberative matter, namely, opinion and recommendation prepared and recorded in the course of the deliberative process involved in the functions of the NDIA. I am therefore satisfied that Document 3 is conditionally exempt under section 47C of the FOI Act.

Public interest considerations – section 47C

Section 11A(5) of the FOI Act provides that access to a document covered by a conditional exemption must be provided unless disclosure would be contrary to the public interest.

Section 47C is a conditional exemption.

Section 11B sets out factors favouring access to a document in the public interest and factors that I must not consider when making my decision.

In the present case, factors favouring access to Document 3 include that access:

would promote the objects of the FOI Act, namely, increasing public participation in Government processes, with a view to promoting better-informed decision-making, and increasing scrutiny, discussion, comment and review of the Government’s activities; and
would inform debate on a matter of public importance, namely, NDIA staff members’ proposals for the circumstances and manner in which the NDIA engages independent expert clinicians when NDIS participants are before the Administrative Reviews Tribunal.

Factors that suggest that disclosure of Document 3 would be contrary to the public interest include:

the document is in its very early stages; it is the first version of a draft document that is yet to be considered by the Agency’s executive leadership team. As such, it very much represents the views, opinions and expertise of non-executive staff in a single Agency group;
further versions of the draft document will be subject to a privacy impact assessment and advice from both internal and external legal professionals. It is on the cards that these inputs will result in a final document that differs significantly from Document 3;
the Agency’s Reviews and Information Release Division is awaiting approval to enter into a process for the procurement of independent expert clinicians. The procurement process will not be entered into until the guidance for that procurement is finalised. Were Document 3 to be disclosed under the FOI Act before the guidance is finalised, it is reasonable to expect it would give rise to unwarranted concerns and queries from clinicians who are likely to be affected by the ultimate changes to the manner and the basis on which they are to be engaged. This could fray relations between the clinicians and the NDIA, and require the NDIA to engage in discussions that, at this stage, could only be hypothetical.
I consider the reasons outlined in the 3 dot points above reduce the weight that ought to be given to the factors favouring access to Document 3. The document is at such an early stage that it would be premature to open it to public contributions, discussion, comment and review. Additionally, while the circumstances and manner in which the NDIA engages independent expert clinicians is a matter of legitimate public interest, Document 3 cannot be said to represent these as they will stand once the processes are finalised. The document is very much deliberative.

I conclude that the factors favouring disclosure of Document 3 are outweighed by those that indicate it would be contrary to the public interest to do so. I have therefore decided that Document 3 is exempt under section 47C of the FOI Act and I refuse access to it.

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

Section 47E(d) of the FOI Act provides that a document is conditionally exempt if its disclosure under the Act would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

As stated previously, the NDIA’s operations include doing anything that is incidental or conducive to the functions of the agency as set out in section 118(1) of the National Disability Insurance Scheme Act 2013 (the NDIS Act). I am satisfied that this includes managing litigation commenced by NDIS participants under section 103 of the NDIS Act.

When assessing whether section 47E(d) has application to a document, I must bear in mind that:

the expectation of the effect actually occurring must be more than mere risk, allegation, possibility or chance but need not amount to certainty; and
the term “substantial adverse effect” refers to an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person, and to loss or damage that is real or of substance and not insubstantial or nominal.[^1]

Annexure B to Document 2 is the ALOC Risk Matrix. This annexure sets out risks to which members of the NDIA’s Appeals and Litigation Oversight Committee are to have regard when deciding upon the most appropriate course of action to progress a matter listed for hearing before the Administrative Review Tribunal. The risks in question comprise risks to the participant litigant, risks associated with the NDIA’s model litigant obligations, risks of a particular judicial precedent being set, and risks to the NDIA’s reputation. These risks are to be assessed in accordance with the matrix when deciding how to progress the litigation or resolve it.

Bearing in mind the principle that disclosure under the FOI Act often operates as disclosure to the world at large, I am satisfied that were the risk matrix disclosed under the Act, litigants or their representatives would be enabled to assume certain features of their presentation or circumstances so as to manipulate the committee’s assessment of the risks of taking certain approaches to matters before the Tribunal. Were this to occur, I am satisfied that it could reasonably be expected to skew individual risk assessments in the short-term and diminish the usefulness of the matrix in the medium-term.

In my view, such outcomes would have effects on the proper and efficient conduct of the NDIA’s operations that would be both substantial and adverse. The NDIA devotes a large number of significant resources, including financial resources, to managing litigation in the ART. Any action that might be taken by NDIS participants or their representatives that resulted in manipulating the manner in which the committee decides to approach a particular

[^1] Chapter 6 of the Australian Information Commissioner’s Freedom of Information Guidelines. Part 6: Conditional exemptions | OAIC

claim would jeopardise the effectiveness of those decisions and lead to unnecessary expenditure of government funds.

I am therefore satisfied that disclosure of Annexure B to Document 2 could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the NDIA’s operations and it is therefore conditionally exempt under section 47E(d) of the FOI Act.

Redactions to Documents 1 and 4 have also been made under section 47E(d). The material redacted from those documents comprises internal NDIA email addresses, which are used to facilitate communications across different areas of the Agency. I am satisfied that, were these to be disclosed under the FOI Act, it is likely these addresses would be misused by aggrieved members of the public who are in the habit of sending single emails to multiple addressees, including multiple addresses used by the NDIA.

Such communications interfere with the NDIA’s ability to efficiently triage and respond to grievances, complaints and questions, and can lead to confusion and duplication of effort. I am therefore satisfied that disclosure of these addresses could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of Agency operations, and they are conditionally exempt under section 47E(d) of the FOI Act.

Public interest considerations – section 47E(d)

Section 11A(5) of the FOI Act provides that access to a document covered by a conditional exemption must be provided unless disclosure would be contrary to the public interest.

Section 47E(d) is a conditional exemption.

Section 11B sets out factors favouring access to a document in the public interest and factors that I must not consider when making my decision.

In favour of disclosure, I have determined that disclosure of the relevant information in Documents 1, 2 and 4 would promote the objects of the FOI Act by providing access to documents held by the government and provide insight into some of the factors considered by the ALOC when deciding what approach should be taken to litigation. Against this I consider that, while bound by the Model Litigant Obligations, the NDIA remains entitled to act firmly and properly to protect its interests and to assist the ART to reach correct or preferable decisions. A degree of confidentiality is required to allow us to do that. I therefore afford the second pro-disclosure minimal weight.

Against disclosure, I consider that disclosure of the conditionally exempt material:

could reasonably be expected to lead to less effective management of litigation, resulting in the NDIA accruing additional legal costs;
render Annexure B to Document 4 less effective, thus requiring the NDIA to spend time and resources developing an alternative tool; and
permit the spamming of multiple NDIA internal email addresses in place of using addresses established for the purpose of communicating grievances, complaints and questions, leading to confusion for NDIA staff and duplication of effort, as well as delaying responses to communications from persons who use the established addresses.

In summary, I am satisfied that the factors against disclosure of the information outweigh the factors in favour of disclosure and that, on balance, it would be contrary to the public interest to release this information to you. Accordingly, I have decided that the relevant information is exempt under section 47E(d) of the FOI Act.

Release of documents

The documents for release, as referred to in the Schedule of Documents at Attachment A, are enclosed.

Rights of review

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

Should you have any enquiries concerning this matter, please do not hesitate to contact me by email at redacted: s47E(d) - internal email address.

Yours sincerely

Helen Senior Freedom of Information Officer [HIL533] Information Access and Privacy Branch Reviews and Information Release Division

Attachment A

Schedule of Documents for FOI 25/26-0062

Document number	Page number	Description	Access Decision
1	1-11	NDIA Standard Operating Procedure: Resolved by Hearing V001 Exemption claimed: S47E(d) — certain operations of agencies	PARTIAL ACCESS
2	12-27	NDIA Standard Operating Procedure: Appeals and Litigation Oversight Committee (ALOC) and Pre-ALOC V001 Exemption claimed: S47E(d) — certain operations of agencies	PARTIAL ACCESS
3	28-38	Draft NDIA Standard Operating Procedure: Engaging an Independent Expert Clinician V001 Exemption claimed: S47C — deliberative process	ACCESS REFUSED
4	39-61	NDIS Standing Instructions: Administrative Appeals Tribunal Date: October 2023	PARTIAL ACCESS Exemption claimed: S47E(d) — certain operations of agencies
5	62-66	Draft NDIS Case Management Guide: Conciliation Date: October 2024	FULL ACCESS

Delivered by the National Disability Insurance Agency

Attachment B

Your review rights

As this matter was a deemed refusal, internal review of this decision is not an option. However, if you have concern with any aspect of this decision, please contact the NDIA FOI team by email foi@ndis.gov.au or by post:

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

Review by the Office of the Australian Information Commissioner

The FOI Act gives you the right to apply to 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 form available on OAIC’s website via: OAIC Web Form, within 60 days of receipt of this letter.

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

Online: OAIC Web Form
Post: 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 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 identified above. Your complaint to the Ombudsman can be directed to:

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

Your complaint should be in writing and should set out the grounds on which it is considered that the actions taken in relation to the request should be investigated.

FOI 25/26-0062 DOCUMENT 1

OFFICIAL

For Internal Use Only

National Disability Insurance Agency

Chief Counsel Division

Standard Operating Procedure: Resolved by Hearing

This document is uncontrolled in hardcopy.

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