Preliminary submission by the NDIA in support of exemptions

OAIC reference: MR25/02430 NDIA reference: FOI 24/25-2051

GPO Box 700 Canberra ACT 2601 1800 800 110

24 February 2026 ndis.gov.au

Melih Sayan

By email: foidr@oaic.gov.au

David Wright

By email: foi+request-14023-6b7db17b@righttoknow.org.au

Dear Melih and David,

On 3 December 2025, the Office of the Australian Information Commissioner (OAIC) issued a notice that the applicant was contesting reasons the NDIA refused access as set out in our decision dated 28 November 2025.

The purpose of this letter is to provide both parties with the information in support of the exemptions claimed.

Background

On 16 May 2025, the FOI applicant lodged a FOI request for:

“…FOI 24.25 0759 Documents Disclosure Log (Document 3) cites the following reference documents:
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- NDIA Model Litigant Guidelines
- NDIA Dispute Resolution Policy
- Standard Operating Procedure: Model Litigant Obligation Complaints
- NDIA Model Litigant Obligations - Breaches, Themes and Learnings.
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Please provide a copy of each of these documents. If there are multiple versions of some or any of the documents, please provide me with only the most recent/current version of them…“
On 13 November 2025, NDIA provided a decision releasing three documents in full

and one document partially, exempting information under sections, 22, 47F and 47C

of the FOI Act.

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On 13 January 2026, OAIC notified NDIA of an IC review, stating that the ‘applicant contests the respondent’s reasons for refusing access as set out in the decision under review’.
NDIA revisited the FOI decision and consulted with the decision maker to understand their reasons for exempting parts the ‘NDIA Model Litigant Obligations – Breaches, themes and learnings’ document under sections 47C and 47F.
The NDIA also revisited the internal consults held with internal branches, including the Legal Branch.
The NDIA has relied upon their advice and stand by the exemptions applied and argue that the document was intended for NDIA staff only and that the same parts exempted under section 47C should also be exempted under section 42 of the FOI Act.

Exemptions

Application of section 47C

The document ‘NDIA Model Litigant Obligations – Breaches, themes and learnings’ is a document prepared by an external lawyer to provide training to NDIA staff.
The document contains information obtained through deliberative matter in the form of evaluating opinion, advice and recommendations recorded in the course of reviewing the carrying out of functions of the Agency to provide training to staff.
Section 47C (1)(a) of the FOI Act, conditionally exempts a document if its disclosure 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 processes involved in the functions of an Agency
Section 47C(2)(b) of the FOI Act provides that deliberative matter does not include operational information and purely factual material.
The FOI Guidelines 6.70, provides that ‘purely factual material’ does not extend to factual material that is an integral part of the deliberative content and purpose of a document, or is embedded in or intertwined with the deliberative content such that it is impractical to excise it.
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Parts of the document also contains factual material, which is part of the deliberative content, or is embedded or intertwined with the deliberative content such that is it impractical to excise.

NDIA submits that the document is exempt under section 47C and notes that to release that information pose the following risks to NDIA:

a. disclosure would or could reasonably be expected to have substantial
  adverse effect on the proper and efficient conduct of the operations of NDIA
  through this deliberative process
b. adversely affect the Agency’s deliberative processes by discouraging frank
 and candid stakeholder input in future training
c. adversely affect the Agency’s capacity to obtain frank, candid and
 comprehensive advice from external experts in the future
d. hinder the Agency’s thinking processes and the ability of Agency staff to
 comply with their obligations and make informed decisions, which, in turn,
  helps to ensure the integrity of the National Disability Insurance Scheme and
   assists in carrying out the Agency’s functions

In considering the public interest, the Agency acknowledges that it can be said that in favour of disclosure, the relevant information in the documents would:

a. promote the objects of the FOI Act by providing access to documents held by
   the government
b. promote effective oversight of public expenditure,
c. Inform debate on a matter of public importance.

Reasonable weight has been considered in favour of disclosing the documents in full.

This is because providing access to documents held by the NDIA allows for increased scrutiny, discussion, comment, and review of government held information.

Against disclosure, NDIA considers that disclosure of the relevant information in the documents would:
- not contribute to the publication of information of sufficient public interest to justify the likely harm caused by release,
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not enhance Australia’s representative democracy in the ways described in section 11B(3) of the FOI Act, * not inform any debate on a matter of public importance, or promote oversight of public expenditure, * reasonably be expected to prejudice the functions of the Agency, * reasonably be expected to tarnish the sustainability and integrity of the Agency and the National Disability Insurance Scheme as a whole

The FOI Act does not list any factors weighing against access. These factors, like those favouring disclosure, will depend on the circumstances. However, the inclusion of the exemptions and conditional exemptions in the FOI Act recognises that disclosure of some types of documents will, in certain circumstances, prejudice an investigation, unreasonably affect a person’s privacy or reveal commercially sensitive information which may, on balance be contrary to the public interest.
OAIC’s guidelines provides a non-exhaustive list of factors against disclosure which NDIA have also considered.

While there may be some or limited public interest for disclosure of the information held, there is also strong interest in withholding the information from disclosure and conditionally exempting them under section 47C being:

a. While NDIA accepts that there is a public interest in allowing scrutiny,
   discussion, comment and review of information held by the NDIA, there is
   also a strong public interest in ensuring the functions of the Agency are not
   prejudiced or an administrative or deliberative process is not compromised
 and that the stability and integrity of NDIA are not tarnished,
b. Release of this material may prejudice the Agency’s ability to obtain
    confidential or sensitive information in the future and be reasonably expected
    to discourage staff from deliberating, consulting, providing commercially
   sensitive or confidential information, provide sensitive or confidential legal
    training and contributing openly in an efficient and effective manner,
c. It could reasonably be expected to discourage and reduce the high quality of
    future training, and undermine the Agency’s ability to identify and implement
  advice or operational improvements, thereby causing direct interference in the
management of deliberative and advisory functions of the Agency,

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d. It could reasonably be expected to hinder the Agency’s thinking, administrative and deliberative processes and the ability of Agency’s policy/procedural decision-makers to comply with their obligations and make informed decisions, which, in turn, helps to ensure the financial stability and/or integrity of the National Disability Insurance Scheme

Application of section 47F

The ‘NDIA Model Litigant Obligations – Breaches, themes and learnings’ document contains information of NDIS participants who can be identified.
The information that is conditionally exempt under section 47F has also not been previously disclosed to the applicant.
NDIA have a duty of are to keep NDIS participants details confidential under the Privacy Act 1988.
In these circumstances, NDIA is satisfied that parts of the documents are conditionally exempt under section 47F and that disclosure would involve the unreasonable disclosure of personal information about any person.

In considering the public interest, the Agency acknowledges that it can be said that in favour of disclosure, the relevant information in the documents would:

      (a) promote the objects of the FOI Act by providing access to documents held
      by the government

      (b) promote effective oversight of public expenditure, or

       (c) Inform debate on a matter of public importance.

Reasonable weight has been considered in favour of disclosing the documents in full.

This is because providing access to information held by the NDIA allows for
increased scrutiny, discussion, comment, and review of government held information.

Against disclosure, NDIA considers that disclosure of the relevant information in the documents would:

     * not contribute to the publication of information of sufficient public interest to
            justify the likely harm caused by release,

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not enhance Australia’s representative democracy in the ways described in section 11B(3) of the FOI Act, * not inform any debate on a matter of public importance, or promote oversight of public expenditure, * reasonably be expected to prejudice the functions of the Agency, * reasonably be expected to tarnish the sustainability and integrity of the Agency and the National Disability Insurance Scheme as a whole

The FOI Act does not list any factors weighing against access. These factors, like those favouring disclosure, will depend on the circumstances. However, the inclusion of the exemptions and conditional exemptions in the FOI Act recognises that disclosure of some types of documents will, in certain circumstances, prejudice an investigation, unreasonably affect a person’s privacy or reveal commercially sensitive information which may, on balance be contrary to the public interest.
OAIC’s guidelines provides a non-exhaustive list of factors against disclosure which NDIA have also considered.

 a. While NDIA accepts that there is a public interest in allowing scrutiny,
    discussion, comment and review of information held by the NDIA, there is
    also a strong public interest in ensuring the disclosure of documents would
    not involve unreasonable disclosure of personal information, in regards to:

                    i. the extent to which the information is well known;

                     ii. 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;

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

            iv. any other matters that the agency considers relevant.

 b. It is apparent from the information that an individual is identifiable and their
    information is not readily available from public accessible sources. Release of
      this information would or could be reasonably expected to lead to
   unwarranted approaches or contact to the individual/s by members of the
    public which would adversely impact their health and wellbeing

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c. Release of this information would or could reasonably be expected to adversely impact the Agency’s obligation to protect NDIS participants in accordance with the Privacy Act 1988.

        d. Release of this information would hinder with NDIS participants wanting to
        keep their personal details private and confidential and release of the
           information could be reasonably expected to result in the breach of the
          Privacy Act 1988.

Preliminary application of section 42 – Legal Professional Privilege

After revisiting the ‘NDIA Model Litigant Obligations – Breaches, themes and learnings’ document, internal consults with the legal branch and the parts exempted under section 47C, NDIA have also considered exemption section 42, Legal Professional Privilege.

NDIA submits that ‘NDIA Model Litigant Obligations – Breaches, themes and learnings’ document contains legal professional privileged and confidential information held between a legal advisor and their client (NDIA) and provided for the purpose of giving or receiving legal advice and training.

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 grounds of legal professional privilege (LPP).

Paragraph 5.145 of the FOI Guidelines states that to determine the application of this exemption regard is to be had to common law concepts of LPP.

At common law, determining whether a communication is privileged requires consideration of whether:

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

I am satisfied that there is a legal advisor-client relationship, the communication was for the purpose of legal advice and the advice was sought and given from an independent legal advisor and entered into on a confidential ‘staff only’ basis.

I am also satisfied that LPP has not been waived by the Agency.

I therefore conclude that the exempted material exempted under section 47C, is also exempt under section 42 of the FOI Act.

If Mr David Wright wishes to respond, he has 10 business days after receiving this email to make a submission to OAIC.

If OAIC requires further information or submissions to assist with the review, please do not hesitate to contact us by email at foi@ndis.gov.au.

Yours sincerely

SussanJ.

Sussan (SJL495) Senior Freedom of Information Officer – Review Team Information Access and Privacy Reviews and Information Release Division National Disability Insurance Agency