NDIS correspondence: Notice of Decision - FOI 24/25-1470 (LEXD 62797)

Our reference: FOI 24/25-1470 (LEXD 62797)

OAIC reference: MR25/00831

24 June 2025

Me

By email: foi+request-12890-ca7e8bfd@righttoknow.org.au

Dear Me

Freedom of Information request — Notice of revised decision under section 55G of the Freedom of Information Act 1982

Thank you for your correspondence of 6 March 2025, in which you requested access to documents held by the National Disability Insurance Agency (NDIA), under the Freedom of Information Act 1982 (FOI Act).

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

Scope of your request

You have requested access to the following documents:

“… a copy of all documents that:

1. Contain current advice or guidance or similar on the definition of ‘impairment’ (as used in the Act), and
2. Are not publicly available, and
3. Are not advice et al to a specific individual (for example, an email in response to a question is not included; a reference document in Teams is, even if the reference document is not a formal SOP).

Where a document is in scope the request is for the whole document, not just the portion relating to impairment

I agree to the exclusion of non-SES details and applicant/participant personal information…”

On 29 March 2025, you revised the scope of your request via email as follows:

“…I narrow the request to:

• Only relate to ‘impairment’ as used in s 24
• Not include documents already released under 0883 and 0754”

Processing period

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 6 March 2025, the original due date for your request was 5 April 2025.

On 31 March 2025, you agreed to a 30-day extension of time under section 15AA of the FOI Act, making the new extended due date 5 May 2025 for us to provide a decision on access.

We have been experiencing processing delays and were not able to provide you with our decision by the due date. Consequently, your application was regarded as a deemed refusal under section 15AC of the FOI Act. We sincerely apologise for this.

We note that you have now applied to the Office of the Australian Information Commissioner (OAIC) for a review by the Information Commissioner (IC) of our deemed refusal.

Revised decision under section 55G

Section 55G(1)(a) of the FOI Act provides that at any time during an IC review, an Agency may vary an access refusal decision in favour of the applicant by giving access to documents in accordance with the request (revised decision).

Section 55G(2) provides that an Agency must notify the IC of the revised decision, and that decision becomes the decision under review.

Decision on access to documents

I am authorised to make decisions under section 23(1) of the FOI Act, including revised decision under s55G of the FOI Act. My revised decision on your request and the reasons for my decision are set out below.

I have identified 13 documents, which fall within the scope of your request.

The documents were identified by consulting with relevant NDIA staff in the Scheme Eligibility branch and Service Guidance branch who could be expected to be able to identify documents within the scope of the request.

I have decided to:

• grant access to 7 documents in full and
• grant access to 6 documents in part.

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
• factors relevant to my assessment of whether or not disclosure would be in the public interest
• the NDIA’s operating environment and functions.

The FOI Act states that, in making a decision on a request, I must consider the FOI Guidelines issued by the Information Commissioner pursuant to section 93A of the FOI Act.

According to the FOI Guidelines, the FOI Act serves as the legislative foundation for open government, facilitating and promoting public access to information. I believe that providing access to these documents aligns with the objects of the FOI Act, such as fostering better-informed decision-making and enhancing analysis, discussion, commentary, and review of information held by the government.

As previously advised, during preliminary searches, we conducted a keyword search of the NDIA’s FOI Disclosure Log (FOI Disclosure log | NDIS) using the term ‘impairment’. This search identified documents associated with two FOI decisions — FOI 24/25-0754 and FOI 24/25-0883 — which fall within the scope of your request. These documents are publicly available on the NDIA’s FOI Disclosure Log and were recently published. I note that we have already provided these documents to you as attachments to our email dated 28 March 2025.

Upon further assessment, we have identified two additional documents - ‘Access and Eligibility Reassessment (ER) Practice Guide – Version 2.0’ and ‘Access and Eligibility Reassessment (ER) Practice Guide – NDIS Amendment Act 2024’ - that closely align with the scope of your request. These documents were recently released as part of the FOI decision FOI 24/25-0956. These documents are attached for your convenience. Further, I note, these documents are also publicly available on the NDIS disclosure log. Accordingly, I have excluded these documents from consideration in this decision.

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

I have decided that Documents 1 to 4, 9 and 10 contain material that is exempt from disclosure under the FOI Act.

I have also identified that Documents 1, 9 and 10 contain material that is irrelevant to your request. The irrelevant material relates to information such as instructions and internal guidance to staff, which is not relevant to the subject matter of your request.

In accordance with section 22 of the FOI Act, I have considered whether it is possible to delete the exempt material from the document 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

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

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

Document 3 contains information relating to certain operations of the NDIA, specifically internal guidance given to staff in relation to decision-making in determining the level of supports a participant may require. The disclosure of this information would reveal methodologies the NDIA uses to assist in determining levels of support provided to NDIS participants, which is to better ensure that participants receive supports that are reasonable and necessary.

I am satisfied that the release of this information would potentially result in the public disclosure of internal methodologies that, through improper use, would, or could, substantially and adversely affect the integrity of the NDIS and its financial sustainability.

Accordingly, I have decided that the relevant information in Document 3 is conditionally exempt under section 47E(d) of the FOI Act.

Documents 3, 4 and 10 also contains information relating to certain operations of the NDIA, specifically internal single point of contact (i.e., internal mailbox), intended exclusively for use only by NDIA staff in their work. These internal mailboxes are not public facing. Emails sent by NDIA staff to these specialist mailboxes are effectively directed to subject matter experts within each team, facilitating NDIA’s internal operations.

Disclosing internal single points of contact may jeopardise their effectiveness in receiving feedback and complaints. I am satisfied that, if this information were disclosed, there would be reasonable likelihood of aggrieved members of the public seeking to gain advantage over others by using internal points of contact in place of the appropriate points of contact that are public facing. I conclude that the release of this information could reasonably be expected to have an adverse effect on the proper and efficient conduct of the operations of the Agency, namely the Agency’s ability to conduct its operations in a timely and efficient manner.

Accordingly, I find that disclosure of this information would or could reasonably be expected to have a substantial adverse effect on the operations of the Agency and is therefore conditionally exempt under section 47E(d) of the FOI Act.

Public interest considerations – section 47E(d)

Under the FOI Act, I can only refuse to disclose information which is conditionally exempt if I conclude that it would be contrary to the public interest to do so. Section 11B of the Act sets out what I need to consider and what I must not consider when reaching my conclusion.

In favour of disclosure, I have considered the factors outlined in section 11B(3) of the FOI Act, and I have determined that disclosure of the relevant information in Documents 3, 4 and 10 would promote the object of the FOI Act by providing access to documents held by the government.

While there is limited public interest in the disclosure of information conditionally exempt under section 47E(d), of the FOI Act, the harm that would result from disclosure is that it could reasonably be expected to prejudice the ability of the Agency to protect established contact points and procedures of the Agency.

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 in Documents 3, 4 and 10 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.

In accordance with section 55G(2) of the FOI Act, I will be providing the IC with a copy of this revised decision.

If you determine that you are satisfied with this revised decision and do not require this decision to be reviewed further by the IC, please let the Agency and the OAIC know.

If you would like clarification on any aspect of my decision, please do not hesitate to contact me by email at foi@ndis.gov.au.

Yours sincerely

Kate (KIM627) A/Assistant Director – Freedom of Information Information Release, Privacy and Legal Operations Branch Reviews and Information Release Division

Attachment A

Schedule of Documents for FOI 24/25-1470 | MR25/00831

Document number	Page number	Description	Access Decision
1	1-54	PowerPoint: AA Section 24(1)(a) – Version 2.0 Date: 28 November 2024	PARTIAL ACCESS Exemption claimed: s22 – irrelevant information
2	55-81	PowerPoint: National Access QDO & AA – Technical Meetings - Section 24(1)(a) Date: Undated	PARTIAL ACCESS Exemption claimed: s47E(d) – certain operations of agency
3	82-83	Section 24(1)(a) - OneNote Guidance Undated	PARTIAL ACCESS Exemption claimed: s47E(d) – certain operations of agency
4	84-105	Powerpoint: National Access QDO & AA – Technical Meetings - Section 24(1)(a) Undated	PARTIAL ACCESS Exemption claimed: s47E(d) – certain operations of agency
5	106-124	Case study 01 – Psychological report (de-identified) - Supporting evidence to support case study activity in Technical Training – Section 24.1(a) Undated	FULL ACCESS
6	125-126	Case study 1 – Access Request Form Supporting Documentation (de-identified) - Supporting evidence to support case study activity in Technical Training – Section 24.1(a) Undated	FULL ACCESS