NDIS correspondence: Notification of Decision - FOI 24/25-1693

Our reference: FOI 24/25-1693

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

9 September 2025

Andrew Smith Right to Know

By email: foi+request-13002-de0e81db@righttoknow.org.au

Freedom of Information request — Notification of Decision

Thank you for your correspondence of 4 April 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 decision on your request.

Scope of your request

In your original request, you requested access to:

“…I request access to the whole of final and current versions of the below documents, including any schedules/annexes:

• Instruments of delegation, made by the NDIA CEO relating to NDIS planning (such as approval of participant plans within specified conditions).

• To the extent not covered above, any operational delegations made by the NDIA CEO and/or NDIA Board.

• Accountable Authority Instructions (AAI), including any financial authorisations/delegations contained in them.

• Briefings and/or requests (howsoever described) to the NDIA CEO and/or NDIA Board relating to approval/signing of the current version of any of the documents above.

• Where a register/database (howsoever described) of current delegations (of any nature) made by the NDIA CEO and/or NDIA Board exists, that register/database.

• The “AAI Quick Guide: Delegations and Authorisations” or, if that document is no longer current, any comparable document.

• Any policies/procedure/guidance/directions described or mentioned in the AAI Quick guide described above…”

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Processing timeframes

In accordance with section 15(5)(b) of the FOI Act, a 30-day statutory period for processing your request commenced from 5 April 2025 with the due date for a decision on access of 5 May 2025.

I note this time has lapsed and as a result your request is taken to be a deemed refusal under section 15AC of the FOI Act. I sincerely apologise for the significant delay in providing you a decision on this request. I confirm that you do retain the right to seek an external review of this decision with OAIC – please see Attachment B of this notice for more details.

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 identified 12 documents, including attachments, which fall within the scope of your request.

The documents were identified by consulting with relevant NDIA staff 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
• grant access to 4 documents in part
• refuse access to one document.

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

• your correspondence on 4 April 2025 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
• relevant case law concerning the operation of the FOI Act
• consultation with relevant NDIA staff
• factors relevant to my assessment of whether disclosure would be in the public interest
• the NDIA’s operating environment and functions.

Reasons for decision

Legal professional privilege (section 42)

I have decided that two of the documents are exempt or partially exempt from disclosure under section 42 of the FOI Act. This section 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.

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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.

To determine whether a communication between a client and their lawyer is privileged, it is necessary to consider:

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

Documents 3 is a paper prepared for a meeting of the NDIS Board, which took place on 24 October 2024. It contains references to legal advice provided by NDIA Legal Services. Document 3.2 contains legal advice provided by NDIA Legal Services regarding discretionary financial assistance and defective administration.

In Ransley and Commissioner of Taxation (Freedom of Information) [2015] AATA 728, it was held that “communications and information between an agency and its qualified legal advisers for the purpose of giving or receiving advice will be privileged whether the legal advisers are salaried officers [or not], provided they are consulted in a professional capacity in relation to a professional matter and the communications arise from the relationship of lawyer-client”.

It has also been held that an in-house lawyer has the necessary degree of independence if their personal loyalties, duties or interests do not influence the professional legal advice they give.1

In the present case, I am satisfied that both of the documents identified as exempt or partially exempt under section 42 of the Act evidence a bona fide legal client-adviser relationship. They contain communications that were made for the dominant purpose of giving or obtaining legal advice and that were made on a confidential basis. There is nothing before me that suggests that those who received the advice have waived privilege in it. The documents are therefore exempt from disclosure under 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.

The term “personal information“ is defined as information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether or not the information or opinion is true, and whether or not it is recorded in a material form.

Document 4 contains personal information of NDIA staff members, specifically their mobile phone numbers.

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1 Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82.

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Additionally, Documents 1, 4 and 5.3 contain the signatures of executive members of NDIA staff. The former Administrative Appeals Tribunal has held that a person’s signature is as much part of a person’s personal affairs as the contents of their wallet, their credit cards and private correspondence.2 Following this reasoning, I conclude that the executives’ signatures are their personal information.

In determining whether disclosure of the mobile phone numbers and the signatures would be unreasonable, section 47F(2) of the FOI Act requires me to have regard to all relevant factors including:

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; and c. the availability of the information from publicly accessible sources.

In the present case, the information in question is not well-known or available from publicly accessible sources.

Given the factors referred to above, I conclude that disclosure of the relevant NDIA staff members’ personal information would be unreasonable and it is therefore conditionally exempt under section 47F of the FOI Act.

Public interest considerations – section 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. Section 47F is a conditional exemption.

Section 11B of the FOI Act sets out public interest factors that I must consider when deciding whether to grant access to a document. It also sets out factors that are irrelevant to that consideration; I have not taken any of these into account.

In favour of disclosure, there is the fact that the conditionally exempt material is information held by the Government. One of the objects of the FOI Act is to give the Australian community access to information held by the Government of the Commonwealth by providing a right for access to documents.

However, in my view, the disclosure under the FOI Act of two individual staff members’ mobile phone numbers and four individual staff members’ signatures would not achieve other objects of the Act. In particular, disclosure would not promote Australia’s representative democracy by increasing public participation in Government processes, or increasing public scrutiny, discussion, comment and review of the Government’s activities.

While I consider there is minimal public interest in disclosing the material in question, there is a public interest in protecting individuals’ personal privacy. This is an important right,

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2 Re Colin James Corkin and Department of Immigration and Ethnic Affairs [1984] AATA 448 [14].

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recognised by the objects of the Privacy Act 1988 and is a factor that weighs against disclosure.

I conclude that it would be contrary to the public interest to disclose the individuals’ mobile phone numbers and that this information is exempt under section 47F of the FOI Act.

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

I have decided that two of the documents contain material that is exempt from disclosure under the FOI Act. I refer you to Attachment A for details of those documents.

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 relevant documents with the exempt material removed.

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 foi@ndis.gov.au.

Yours sincerely

Helen (HIL533) Senior Freedom of Information Officer Information Release, Privacy and Legal Operations Branch Reviews and Information Release Division

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Attachment A

Schedule of Documents for FOI 24/25-1693

Document number	Page number	Description	Access Decision	Comments
1	1-44	NDIS Act 2013 – Instrument of Delegation 1 of 2025 Date: 1 January 2025	PARTIAL ACCESS Exemption claimed: Section 47F - personal privacy	1 1-44
2	45-120	NDIA – Accountable Authority Instructions (AAIs) v5.0 Date: February 2025	FULL ACCESS
3	121-124	NDIA Board meeting notes – Accountable Authority Instructions Date: 24 October 2024	PARTIAL ACCESS Exemption claimed: Section 42 – legal professional privilege	3 121-124
3.1	125-203	Attachment A NDIA – Accountable Authority Instructions (AAIs) v5.0 Date: September 2024	FULL ACCESS	3.1 125-203
3.2	204	Attachment B Background from Legal on Discretionary financial assistance and defective administration Date: Undated	ACCESS REFUSED Exemption claimed: Section 42 - legal professional privilege

Attachment B

Your review rights

Internal review

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 Release, Privacy and Legal Operations 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 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 the OAIC’s website at www.oaic.gov.au, within 60 days of receipt of this letter.

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

• Online: www.oaic.gov.au
• Post: GPO Box 5218, Sydney NSW 2001
• Email: enquiries@oaic.gov.au
• Phone: 1300 363 992 (local call charge)

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.