NDIS correspondence: Notification of Decision - FOI 25/26-0105 | FOI release material

Our reference: FOI 25/26-0105 (LEXD 1458)

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

21 November 2025

David Wright

By email: foi+request-13410-0848fa1d@righttoknow.org.au

Dear David Wright

Freedom of Information request — Notice of Decision

Thank you for your correspondence of 15 July 2025, in which you requested 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 originally requested access to the following documents:

FOI 24/25-0251, document 2 includes a Ministerial Brief that records Matthew Swainson, Chief Counsel, as the contact officer.

I request copies of all briefings provided to the Minister for the NDIS, and/or to the CEO of the NDIA, which record Matthew Swainson as the contact officer.

On 30 September 2025, you revised the scope of your request as follows:

…the 68 briefs from 1 May 2022–30 April 2023.

Extension of time

On 24 July 2025, you agreed to a 30-day extension of time under section 15AA of the FOI Act, making 13 September 2025 the date by which to provide you with a decision on your request. We have been experiencing processing delays, and were unable to provide you with our decision by this date. Consequently, your application is deemed to have been refused under section 15AC of the FOI Act.

I note that this access decision is being released to you after the due date, and I apologise for the delay. In the interests of not causing any further delays, I have decided not to apply for an extension from the Office of the Australian Information Commissioner (OAIC) under section 15AC of the FOI Act. This means that you are unable to seek an internal review of this decision. However, your right to apply for an external review with the OAIC remains protected. Please see Attachment B for more information about your rights of review.

Background to request

On 13 August 2025, we wrote to you to ask you to clarify the scope of your request to determine which minister you were referring to, which CEO you were referring to, what type of briefs you were referring to, and to ask you to provide a date range.

On 14 August 2025, you provide the following clarifications:

I am referring to all NDIS Ministers and all CEOs who occupied those roles once Mr Swainson was appointed to the position of Chief Counsel.
I refer to all briefings that are in the form contained in FOI 24/25-0251, document 2, i.e. formal briefing notes with standardised fields. I note that the briefing at FOI 24/25-0251, document 2 is given the file name ‘MB22-000042’. I assume all such Ministerial briefings in this form are also given a discrete briefing number in the ‘MB’ sequence, and that there is also a standardised briefing note file pathway/sequence for all briefings to the CEO. I am not requesting other forms of briefings, such as email briefings.
The method of confirming Mr Swainson as the contact officer would be as listed in that field of the formal briefing note. I assume ‘Contact’ (or an equivalent such title in the CEO briefing note template, should it be slightly different) is a standard field of the briefing note template, so this should be readily searchable to identify the requested briefings. Please also include all briefings where Mr Swainson’s name is listed in the ‘Cleared by’ field.
The date range is from the time Mr Swainson was appointed to the position of Chief Counsel.

We used this information to run searches for any relevant documents, as advised in our emails to you on 15 August 2025, where we outlined the keywords we were using, and the systems where we were conducting these searches.

On 15 September 2025, we issued you with a request consultation notice in accordance with section 24AB of the FOI Act on the grounds that a practical refusal reason exists for your request, as the work involved in processing your request as originally worded would unreasonably divert the resources of the NDIA from its other operations. We advised you that more than 500 documents were identified as falling within scope of the request. During discussions with you as part of the request consultation process, we broke the number of briefs down for you into smaller timeframes as follows:

1 May 2022 - 30 April 2023 - 68
1 May 2023 - 30 April 2024 - 156
1 May 2024 - 15 July 2025 - 434

Following further consultation with you, on 30 September 2025, you revised the scope of your request to:

…the 68 briefs from 1 May 2022-30 April 2023.

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 reasons for my decision are set out below.

I have decided to refuse access to your request in accordance with section 24(1)(b) of the FOI Act, on the grounds that after consultation with you, I am satisfied that a practical refusal reason still exists.

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

your correspondence outlining the scope of your request
the FOI Act
the FOI Guidelines published under section 93A of the FOI Act
the documents that fall within scope of your request
relevant case law concerning the operation of the FOI Act
consultation with relevant NDIA staff.

A detailed statement of reasons for my decision can be found at Attachment A.

Should you have any enquiries concerning this matter, please do not hesitate to contact me by email at fxx@xxxx.xxx.xx.

Yours sincerely

Carolyn (CJW205) A/g Assistant Director – Information Access Information Access and Privacy Branch Reviews and Information Release Division

Attachment A

Statement of Reasons

FOI 25/26-0105

Section 24AA(1) of the FOI Act states that a practical refusal reason exists in relation to a

request for a document if either (or both) of the following applies:

(a) the work involved in processing the request:

(i) in the case of an agency–would substantially and unreasonably divert the

resources of the agency from its other operations; or

(ii) in the case of a Minister–would substantially and unreasonably interfere

with the performance of the Minister’s functions.

Section 24(1) of the FOI Act provides that if an agency is satisfied, when dealing with a

request for a document, that a practical refusal reason exists in relation to the request, the

agency:

(a) must undertake a request consultation process; and

(b) if, after the request consultation process, the agency or Minister is satisfied that

the practical refusal reason still exists–the agency or Minister may refuse to give

access to the document in accordance with the request.

Paragraph 3.209 of the FOI Guidelines states that it is recommended that agencies …

examine a sample of the documents to assess the complexity of the material to determine

whether the work involved in processing the request would constitute a substantial and

unreasonable diversion of resources from the agency’s other operations … A person with

appropriate knowledge or expertise should assess the sample, looking at each document as

if they were making a decision on access…

I assessed a 10% sample, analysing 7 documents of the 68. These documents included

topics such as participant complaints, contract variations, spending proposals and

Administrative Review Tribunal decisions.

5 documents contained more than 1 attachment
Each document was more than 5 pages
6 documents require consultation with third parties in line with sections 27 and 27A of the

FOI Act

Each document would require internal consultation to determine sensitivities and

possible exemption under the FOI Act

Paragraph 3.200 of the FOI Guidelines provides that in deciding whether a practical refusal

reason exists, an agency or minister must have regard to the resources required to perform

the following activities specified in s 24AA(2):

identifying, locating or collating documents within the filing system of the agency or office

of the minister

examining the documents
deciding whether to grant, refuse or defer access
consulting with other parties
redacting exempt material from the documents
making copies of documents
notifying an interim or final decision to the applicant.

In taking these factors into account, along with third-party consultation and internal

consultation, I have assessed it would take 4-5 hours to process each document. In

expanding this sample assessment to all 68 documents, in using an estimate of 4 hours per

document, it would take an officer more than 270 hours to process your revised scope. This

equates to an FOI Officer being taken offline from all other FOI requests for more than 7

weeks, working 37.5 hours each week. In my view, this would substantially and

unreasonably divert the resources of the agency from its other operations. Accordingly, I

have decided that a practical refusal reason still exists for your request, and I have decided

to refuse access to your request in accordance with section 24(1)(b) of the FOI Act.

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](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.