NDIS correspondence: Notice of Decision - FOI 25/26-2443 | FOI release material

Our reference: FOI 25/26-2443 (LEXD 18480)

GPO Box 700 Canberra ACT 2601 1800 800 110 22 May 2026 ndis.gov.au

David Wright

By email: foi+request-14486-0a06f37f@righttoknow.org.au

Dear David Wright

Freedom of Information request — Notice of Decision

Thank you for your correspondence of 16 March 2026, 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 requested access to the following documents:

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

I request copies of all briefings dated from 1 January 2026 which were provided to the Minister for the NDIS, and/or to Executive representatives of the NDIA, and which record Matthew Swainson as the contact officer, or as the officer who cleared/approved the briefing.

Please note the following specifics of my request:

By ‘briefings’ I refer to briefings that are in the form contained in FOI 24/25-0251, document 2, i.e. formal briefing notes with standardised fields. I exclude briefings in other forms, such as email briefings.

Your search for records can be limitied to ‘Ministerial Briefs’ (MB) or ‘Executive Communication’ (EC) within the PDMS system.

Include only the main briefings. Any attachments to the briefings are excluded from my request.

Determining Mr Swainson as the relevant officer would be as recorded in the briefings, e.g. where Mr Swainson is recorded as the contact officer, or authorising officer, or ‘cleared by’ authority etc.

Extension of time

On 14 April 2026, you agreed to a 30-day extension of time under section 15AA of the FOI Act, making 15 May 2026 the date by which to provide you with a decision on your request.

On 19 May 2026, the Office of the Australian Information Commissioner (OAIC) granted a 7- day extension of time under section 15AB of the FOI Act, making 22 May 2026 the date by which to provide you with a decision on your request.

Search efforts

Staff in the Board Secretary, Ministerial and Parliamentary Branch conducted searches of PDMS using all relevant search terms based on your scope and limitations, to identify all relevant documents. As a result of the searches, 6 documents were identified as falling within scope of your request.

Decision on access to documents

I have decided to:

grant access to 1 document in full
grant access to 1 document in part; and
refuse access to 4 documents.

Reasons for decision

I have decided that some information will not be released as it comprises exempt information under sections 42, 45, 47E and 47F of the FOI Act.

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

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 C.

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) Assistant Director – Information Release

Information Access and Privacy Branch Reviews and Information Release Division

Attachment A

Schedule of Documents

FOI 25/26-2443

Document number	Page number	Description	Access Decision	Comments
1	1-3	Executive Brief: EC25-005297 Date: 23 February 2026	FULL ACCESS
2	-	Executive Brief: EC25-000260 Date: 2 February 2026	REFUSED ACCESS	Exemption claimed: s42 — legal professional privilege
3	4-7	Executive Brief: EC25-000292 Date: 2 February 2026	PARTIAL ACCESS	Exemptions claimed: s42 — legal professional privilege s45 — material disclosed in confidence s47E(d) — certain operations of agencies s47F — personal privacy
4	-	Executive Brief: EC25-000426 Date: 11 February 2026	REFUSED ACCESS	Exemption claimed: s42 — legal professional privilege
5	-	Executive Brief: EC25-000425 Date: Not Dated	REFUSED ACCESS	Exemption claimed: s42 — legal professional privilege
6	-	Executive Brief: EC25-000150 Date: 21 January 2026	REFUSED ACCESS	Exemptions claimed: s42 — legal professional privilege s47F — personal privacy

Attachment B Statement of Reasons FOI 25/26-2443

Forms of access

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

I have decided that Documents 2 to 6 contain material that is exempt from disclosure under the FOI Act, for the reasons set out below.

In accordance with section 22 of 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.

Legal professional privilege (section 42)

Section 42(1) of the FOI Act provides that a document is exempt if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege (LPP).

LPP applies to confidential communications between a lawyer and their client. Paragraphs 5.147-5.148 of the FOI Guidelines provide that legal professional privilege applies to some, but not all, communications between legal advisers and clients. It may also apply to some, but not all, communications between the client and their legal adviser and a third party, to enable the client to obtain legal advice or for use in litigation, either actual or within the reasonable contemplation of the client. The underlying policy basis for legal professional privilege is to promote full and frank disclosure between a lawyer and client to the benefit of the effective administration of justice. It is the purpose of the communication that is determinative. Legal professional privilege protects documents which would reveal communications between a client and their lawyer made for the dominant purpose of giving or obtaining legal advice.

The FOI Act does not define LPP for the purposes of the exemption. To determine the application of this exemption, the decision maker needs to turn to common law concepts of LPP.

Paragraph 5.149 of the FOI Guidelines provides that at common law, determining whether a communication is privileged required a consideration of:

whether there is a legal adviser-client relationship
- whether the communication was for the purpose of giving or receiving legal advice, or use in connection with actual or anticipated litigation
- whether the advice given is independent
- whether the advice given is confidential.

Section 42(2) of the FOI Act provides that a document is not exempt under s42(1) of the FOI Act if the person entitled to claim LPP in relation to the production of the document in legal proceedings, waives that claim. Legal professional privilege belongs to the client.

I am satisfied that the relevant documents represent confidential communications between a lawyer and a client, or the contents of a confidential document prepared by the client, a lawyer or another person, for the dominant purpose of the lawyer providing or seeking legal advice to the client. There is no evidence before me that LPP on the relevant documents within the scope of your request has been waived.

Accordingly, I find that Documents 2 to 6 contain material that meets the criteria for legal professional privilege, and is, therefore, exempt under section 42 of the FOI Act.

Material obtained in confidence (section 45)

Section 45(1) provides that a document is an exempt document if its disclosure would found an action by a person (other than an agency or the Commonwealth) for breach of confidence. In other words, the exemption is available where the person who provided the confidential information would be able to bring an action under the general law for breach of confidence to prevent disclosure, or to seek compensation for loss or damage arising from disclosure.

Paragraph 5.188 of the FOI Guidelines provides that to found a breach of confidence, the following 5 criteria must be satisfied:

- it must be specifically identified
- it must have the necessary quality of confidentiality
- it must have been communicated and received on the basis of a mutual
   understanding of confidence
- it must have been disclosed, or threatened to be disclosed, without authority
- unauthorised disclosure of the information has or will cause detriment.

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Document 3 contains material that has been disclosed for the purposes of a PID investigation. It was provided in confidence, on the basis of a mutual understanding of confidence, and if disclosed, would cause detriment to the individuals involved.

I am satisfied that the information meets the necessary threshold to be considered to found a breach of confidence if it were to be released through a process such as FOI, and it is, therefore, exempt under section 45 of the FOI Act.

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, the inner workings of a PID investigation, and information provided for the purposes of that investigation.

Paragraph 6.114 of the FOI Guidelines provides that a section 47E(d) exemption may apply to a document that relates to a complaint made to an investigative body. Disclosure of this type of information could reasonably affect the willingness of people to make complaints to the investigative body, which would have a substantial adverse effect on the proper and efficient conduct of the investigative body’s operations. Further, disclosure of information provided in confidence by parties to a complaint or investigation may reduce the willingness of parties to provide information relevant to a particular complaint and may reduce their willingness to participate fully and frankly with the investigative process.

I am satisfied that if the relevant material were to be disclosed, it would, or could reasonably be expected to impede the degree that Agency staff would be willing to engage with the Agency during formal investigation processes, which would result in a loss of confidence that these matters would be able to effectively complete investigations and maintain confidentiality in the future. The effectiveness of any investigation process, such as the one outlined in Document 3, relies heavily on individuals having confidence in the process to openly discuss and provide information and to seek advice with respect to those processes. Agency staff participating in future investigations of this nature would have significant reservations about providing full and frank information if there was a precedent of a public disclosure of that information. That, in my view, would have a substantial adverse effect on the NDIA’s operations.

Accordingly, I am satisfied that the relevant material in Document 3 is conditionally exempt under section 47E(d) of the FOI Act.

Personal privacy (section 47F)

Section 47F of the FOI Act conditionally exempts a document if its disclosure would involve the unreasonable disclosure of personal information about any person (including a deceased person).

Paragraph 6.124 of the FOI Guidelines provides that personal information:

- is information about an identified individual or an individual who is reasonably
    identifiable
- says something about a person
- may be opinion
- may be true or untrue
- may or may not be recorded in material form.

Documents 3 and 6 contain personal information of third-parties that is not reasonably known to you.

I am of the view that the following factors do not support the release:

- the relevant information will identify the individuals
- the information is not well known, nor is it available from publicly available sources
- the information will not advance or contribute to the information sought as part of this
   request
- the information will not advance scrutiny of the decision
- disclosure could expose the individuals to unsolicited and inappropriate contact from
    third parties
- disclosure may cause distress to the identified individuals
- disclosure would prejudice the individuals’ right to privacy.

Accordingly, I have formed the view that it would be unreasonable to publicly disclose the relevant personal information and it is, therefore, conditionally exempt under section 47F of the FOI Act.

Public interest considerations – sections 47E(d) and 47F

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.

I have not considered any of the irrelevant factors as set out under section 11B(4) of the FOI Act in making this decision.

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 and 6 would promote the objects of the FOI Act by providing access to documents held by the government.

Against disclosure, I consider that release of the relevant information in Documents 3 and 6 would not:

- contribute to the publication of information of sufficient public interest to justify the
     likely harm caused by release
- enhance Australia’s representative democracy in the ways described in section
   11B(3) of the FOI Act
- inform any debate on a matter of public importance, or promote oversight of public
   expenditure.

While there is limited public interest in the disclosure of conditionally exempt information, I find that disclosure of the personal information identified under section 47F of the FOI Act would, or could reasonably be expected to cause harm if disclosed by:

- prejudicing the ability of the Agency to undertake its usual functions in PID
    investigations
- hinder the Agency’s ability to effectively manage investigations in the future through
    risk of non-disclosure
- affecting an individual’s right to privacy by having their personal information in the
    public domain
- leading to unwarranted approaches to the individuals which would adversely impact
    their ability to perform their role and functions
- adversely impacting the Agency’s obligation to protect staff members in accordance
   with workplace health and safety measures.

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 and 6 is exempt under sections 47E(d) and 47F of the FOI Act.

Attachment C

Freedom of Information request – Your review rights

Internal review

The FOI Act gives you the right to apply for an internal review of this decision. The review will be conducted by a different person to the person who made the original decision.

If you wish to seek an internal review of the decision, you must apply for review, in writing, within 30 days of receiving this letter.

No particular form is required for an application for internal review, but to assist the review process, you should clearly outline your grounds for review (that is, the reasons why you disagree with the decision). Applications for internal review can be lodged by email to foi@ndis.gov.au, or sent 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 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, within 60 days of receiving this letter: OAIC Review Application Form.

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

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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

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