Our reference:
FOI 24/25-0592
OAIC reference:
MR25/00136
GPO Box 700
Canberra ACT 2601
1800 800 110
ndis.gov.au
26 August 2025
David Wright
Right to Know
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear David Wright
Freedom of Information request — Notification of Decision under section 55G
On 13 October 2024, the National Disability Insurance Agency (
Agency), received a request
from you under the
Freedom of Information Act 1982 (
FOI Act).
The purpose of this letter is to provide you with a decision and reasons for the decision, in
relation to your request, under section 55G of the FOI Act.
Scope of your request
You have requested access to the following documents:
FOI 23/24-1400, Document 4, pages 39 – 40 states the fol owing:
"TAT publishes a list of de-identified, general advices on the TAT Digest page NDIS
Intranet. A recent tracking exercise has identified that the TAT Digest page is widely
utilised across the agency as a key resource.
There are eight TAT Published Digest relating to ASD:
1) Request title: Funding of our of school hours care, 6 hours access to
community on Saturday, 576 hours short term accommodation for a 10 year old.
2) Request title: Review of high cost plans for twin brothers submitted for
approval and determination of reasonable and necessary supports.
3) Request title: Assistance Animal for a child with Autism and Epilepsy.
4) Request title: Request for NDIS to fund Applied Behavioural Analysis (ABA)
link. therapy and Music Therapy for 10 year old child with Autism Spectrum
Disorder (ASD).
5) Request title: AT – Freedom jogger pusher fitted with Pelvic strap, Rain
canopy and Highback Kit.
6) Request title: Weighted Blanket for participant with Autism.
1
7) Request title: Swimming and flexible respite/ recreation/ holiday care for a 6-
year-old with Autism."
I note that the document says there are eight TAT 'Published Digest' but there are
only seven listed.
I seek a copy of these and other such de-identified, general advice relating to ASD
held by the NDIA.
Procedural background
The Agency has been experiencing processing delays and was not able to provide you with
our decision by the original due date. Consequently, we are deemed to have refused your
application under section 15AC of the FOI Act. I sincerely apologise for the delay in relation
to your request.
On 17 January 2025, the Agency provided you with reasons for decision in relation to your
request (
Original Decision). Specifically, the Original Decision refused access to all 13
documents determined by the original decision-maker to be within scope of your request on
the basis that the decision-maker considered that the documents were conditionally exempt
under s 47E(d) of the FOI Act and that disclosure of the documents was contrary to the
public interest.
On 6 February 2025, the Office of the Australian Information Commissioner (
OAIC) notified
the Agency under s 54Z of the FOI Act that the matter was subject to Information
Commissioner (
IC) review.
Decision on access to documents
I am an authorised decision maker under section 23 of the FOI Act to make decisions in
respect of requests to access documents. Having given further consideration to the
documents which are the subject of your request, I have determined it is appropriate to set
aside and substitute the Original Decision pursuant to section 55G(1)(a) of the FOI Act so as
to give you access to parts of the documents.
I note that:
• the Original Decision identified 13 documents within scope of your request;
• in circumstances where the Agency has been unable to locate the specific seven de-
identified general advices expressly referred to in your FOI request, a generous
interpretation was applied to the FOI request and accordingly Documents 1-7, being
the identified documents on which the requested de-identified articles were based,
were considered to be within the scope of your request; and
• Documents 8 -13 were correctly regarded as within the scope of your request.
In these particular circumstances, while I do not consider that Documents 1-7 are technically
within scope of your request, I consider it appropriate to proceed on the basis that the 13
documents considered by the original decision maker in making the Original Decision are
within scope of your request for the purpose of this decision.
I have decided to disclose all 13 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
• consultation with relevant NDIA staff
• factors relevant to my assessment of whether or not disclosure would be in the
public interest
• the NDIA’s operating environment and functions.
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.
The Technical Advice and Practice Improvement Branch's digests (
digests) are an internal
resource that have been developed for the exclusive use of the Agency's approximately 120
Technical Advisors, who are allied Health Professionals engaged by the NDIA, to ensure
consistency in the provision of advice to delegates of the NDIA.
The de-identified digests have been prepared as examples, derived from a specific
participant's (de-identified) individual circumstances and their individual support needs, for
the use of the Agency's Technical Advisors for the purpose of assisting them to make
relevant assessments of claims as against the statutory criteria in order to provide correct
internal advice in respect of those claims.
I note that in
Shafran; Secretary, Department of Veterans Affairs and [2024] AATA 115 at
[36], the Tribunal summarised the authorities relevant to the words “
would or could
reasonably be expected to” in s 47E(d) as follows (citations omitted):
[the words "would or could reasonably be expected to"] "...convey something more
than an outcome...that ‘could’ be expected....”. It is not enough that the decision-
maker considers that there is a possibility that the relevant disclosure would result in
the requisite outcome. The words “...require a judgment to be made by the decision-
maker as to whether it is reasonable, as distinct from something that is irrational,
absurd or ridiculous, to expect...It is preferable to confine the inquiry to whether the
expectation claimed was reasonably based.” The decision-maker ought to have
“...real and substantial grounds for thinking that the production of the document could
...[have the requisite outcome]. But, stringent though that test may be, it does not go
so far as to require the decision-maker to be satisfied upon a balance of probabilities
that the production of the document wil in fact...” have that outcome.
In relation to the words "
substantial adverse effect" in s 47E(d), the Tribunal said at [38]
(citations ommitted):
As for the “substantial adverse effect” words, they are said in the FOI Guidelines to
encompass an adverse effect which is sufficiently serious or significant to cause
concern to a properly informed reasonable person. It must arise from disclosure of
the relevant document and particulars of it need to be identified.
I note that the digests provide specific guidance, by way of a particular example of an
individual's circumstances, to a group of experts engaged by the Agency for the purpose of
assisting those experts to assess submissions and evidence lodged by NDIS providers and
participants as against the relevant statutory criteria, in order to produce technical expert
advice to NDIA delegates in making their decisions as to eligibility for particular supports and
the level in which those supports should be provided.
I further note that particular parts of the digests contain specific examples, or references to
particular kinds of situations or circumstances, and the recommendations made previously in
respect of those particular situations or circumstances as they related to a specific
participant, for the expert's consideration in assessing whether the information and evidence
submitted by NDIS providers and participants may be considered to satisfy the relevant
criteria in the legislation.
I am satisfied that public disclosure of these particular parts of the digests would mean that
NDIS providers, NDIS participants, and participants' treating practitioners, wil know how a
technical expert is likely to assess particular evidence and information so as to determine
whether relevant statutory criteria are satisfied, and the kind of evidence and submissions
that is likely to ensure that particular requested supports are then recommended by the
expert to be approved, both generally and by reference to the particular relevant individual's
circumstances in those parts of the digests.
I consider that the disclosure of that information is highly likely to result in:
• prescribing therapists, with knowledge of circumstances and situations that are likely
to satisfy the Agency that each criteria is met, may report to address that criteria in a
manner that "matches" the examples and/or circumstances in the digests, rather
than reporting objectively on the participant's function and anticipated support needs;
• NDIS participants, with the knowledge of the circumstances and examples described
in the digests, may (whether knowingly or unknowingly) provide answers to their
treating practitioners and/or to the Agency that are more likely to align with the
circumstances or examples described in the digests;
• the "tailoring" of information or submissions (whether knowingly or unknowingly), wil
in turn result in findings that requested supports are reasonable and necessary in
circumstances where they would otherwise not be approved;
• the NDIS provider market being impacted because participants may be more likely
to engage providers and practitioners that report in a manner that is aligned with the
examples and circumstances described in the digests, as opposed to providing
objective reporting on a participant's condition and circumstances;
• the funding of supports that are inappropriate for the participant and/or supports that
are not effective and beneficial and/or supports that are not value for money; and
• the increase in fraud by NDIS participants and providers, which is unfortunately a
prevalent and well-known issue that the Agency is actively addressing.
In all of these circumstances, I am satisfied that particular parts of the digests are
conditionally exempt under s 47E(d) because their disclosure would, or could reasonably be
expected to, have a substantial adverse effect on the proper and efficient conduct of the
operations of the NDIA.
In considering whether access to the conditionally exempt material would be contrary to the
public interest for the purposes of s 11A(5) of the FOI Act, I acknowledge that there are
several factors favouring access to the material, including that disclosure may:
• promote the objects of the FOI Act by giving the Australian community access to
information held by government and promoting representative democracy by
increasing scrutiny, discussion, comment and review of government activities; and
• promote scrutiny and oversight of the Agency's operations and its decision-making
processes.
I consider that public interest factors weighing against disclosure of the conditionally exempt
material in the digests include:
• the public interest in preventing and minimising manipulation of the NDIS and
ensuring that information provided by participants in support of their claims are as
accurate as possible;
• the public interest in preventing and minimising fraud;
• the public interest in ensuring the integrity of expert advice and assessment, and of
the NDIA's decision-making process; and
• the public interest in maintaining the sustainability and integrity of the National
Disability Insurance Scheme as a whole.
In weighing up the public interest for and against disclosure, I have not taken into account
the irrelevant factors outlined in s 11B(4) of the FOI Act.
On balance, I consider that given the significant adverse impacts that disclosure of the
conditionally exempt information would have on the NDIA's operations, and in particular:
• the likely increase in manipulation (whether knowingly or unknowingly) of the
decision-making processes by providers, practitioners and participants;
• the likely increase in fraud as against the NDIA; and
• the likely significant impact that such fraud or manipulation would have on the
integrity of the Agency's decision-making processes and on the sustainability of the
NDIS as a whole,
the public interest factors against disclosure outweigh those in favour.
Accordingly, I have determined that those parts of the documents should not be released on
the basis that they are conditionally exempt pursuant to s 47E(d) and because, on balance,
disclosure of the material in these documents would be contrary to the public interest.
Personal privacy (s 47F)
Personal information of participants and their family members
I note that Documents 1-7 and 11 contain personal information of participants and their
family members, including their names, ages, details relating to their disability and supports
they are receiving or seeking, details relating to their NDIS plans, and other identifying
information.
I note that:
• the personal information in the digests is not well known;
• the participants and their family members are not generally known to be associated
with the matters dealt with in the documents;
• the information is not available from publicly accessible sources;
• much of the personal information comprises 'sensitive information' for the purposes
of the
Privacy Act 1988, being personal information that is health information;
• I consider that the personal information should be regarded as highly sensitive in
circumstances where it details participants' and their family members' most private
day-to-day circumstances and challenges;
• having regard to the personal information in question, it would be reasonable to
conclude that the disclosure of the personal information would cause significant
stress to the relevant individuals; and
• no public purpose would be achieved through release of the personal information,
and disclosure would not advance the public interest in government transparency
(particularly noting that your FOI request was for de-identified articles).
In these circumstances, I am satisfied that the disclosure of the personal information of
participants and their family members would be unreasonable.
Accordingly, I am satisfied that the personal information of participants and their family
members in the digests is conditionally exempt under s 47F(1) of the FOI Act.
In considering whether access to the conditionally exempt material would be contrary to the
public interest for the purposes of s 11A(5) of the FOI Act, I consider that no public purpose
would be achieved through release of the information. Having regard to the nature of the
personal information in question and the fact that your FOI request was for de-identified
documents, I consider that there are no public interest factors that weigh in favour of
disclosure of the information.
I consider that the public interest factor weighing against disclosure of the conditionally
exempt material in the digests include the public interest in the protection of individuals' right
to privacy (and, in particular, the right to privacy of participants who are children).
In weighing up the public interest for and against disclosure, I have not taken into account
the irrelevant factors outlined in s 11B(4) of the FOI Act.
On balance, I consider that given the significant stress that disclosure of the personal
information of participants and their family members is likely to have on those individuals,
and the lack of public interest factors in support of disclosure of the information, the public
interest factor against disclosure outweighs those in favour.
Accordingly, I have determined that those parts of the documents should not be released on
the basis that they are conditionally exempt pursuant to s 47F and because, on balance,
disclosure of the material in these documents would be contrary to the public interest.
The documents also contain personal information of NDIS officers, although it is noted that
the last names and contact details of NDIS officers are out of scope of the request.
Personal information of Agency officers and providers
I note that Documents 1-7 also contain personal information of agency officers and of NDIS
providers (or employees of providers).
I note that:
• the personal information in the digests is not well known;
• the officers and providers are not generally known to be associated with the matters
specifically dealt with in the documents;
• the information is not available from publicly accessible sources; and
• no public purpose would be achieved through release of the personal information,
and disclosure would not advance the public interest in government transparency
(particularly noting that your FOI request was for de-identified articles).
In these circumstances, I am satisfied that the disclosure of the personal information of
Agency officers and of providers (or employees of providers) would be unreasonable.
Accordingly, I am satisfied that the personal information is conditionally exempt under s
47F(1) of the FOI Act.
In considering whether access to the conditionally exempt material would be contrary to the
public interest for the purposes of s 11A(5) of the FOI Act, I consider that no public purpose
would be achieved through release of the information. Having regard to the nature of the
personal information in question and the fact that your FOI request was for de-identified
documents, I consider that there are no public interest factors that weigh in favour of
disclosure of the information.
I consider that the public interest factor weighing against disclosure of the conditionally
exempt material in the digests include the public interest in the protection of individuals' right
to privacy.
In weighing up the public interest for and against disclosure, I have not taken into account
the irrelevant factors outlined in s 11B(4) of the FOI Act.
On balance, I consider that given the lack of public interest factors in support of disclosure of
the information, the public interest factor against disclosure outweighs those in favour.
Accordingly, I have determined that those parts of the documents should not be released on
the basis that they are conditionally exempt pursuant to s 47F and because, on balance,
disclosure of the material in these documents would be contrary to the public interest.
Release of documents
The documents for release, as referred to in the Schedule of Documents at
Attachment A,
are enclosed.
Rights of review
In accordance with s 55G(2) of the FOI Act, the Agency understands that your application for
IC review (MR25/00136) is now an application for review of this new decision.
In accordance with section 55G(2) of the FOI Act, I wil 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.
Should you have any enquiries concerning this matter, please do not hesitate to contact me
by email at
xxx@xxxx.xxx.xx.
Yours sincerely
Karla (KHC190) Assistant Director, Information Access
Information Release, Privacy and Legal Operations Branch
Reviews and Information Release Division
Attachment A
Schedule of Documents for FOI 24/25-0592
Document
Page
Description
Access Decision
Applicable exemptions
number
number
1
1-13
Funding of out of school hours care
PARTIAL ACCESS
s47E(d) – certain operations of agency
s47F – personal privacy
2
14-25
Review of high cost plans for twin
brothers
PARTIAL ACCESS
s47E(d) – certain operations of agency
s47F – personal privacy
3
26-34
Asst Animal for a child - Autism and
s47E(d) – certain operations of agency
Epilepsy
PARTIAL ACCESS
s47F – personal privacy
4
35-45
Request - fund ABA and Music
Therapy
PARTIAL ACCESS
s47E(d) – certain operations of agency
s47F – personal privacy
5
46-54
Freedom jogger pusher Kit
s47E(d) – certain operations of agency
PARTIAL ACCESS
s47F – personal privacy
6
55-58
Weighted Blanket for Participant
s47E(d) – certain operations of agency
with Autism
PARTIAL ACCESS
s47F – personal privacy
7
59-68
Swimming and flexible
s47E(d) – certain operations of agency
respite/recreation/holiday care
PARTIAL ACCESS
s47F – personal privacy
8
69-80
Early Childhood / Early Intervention
Assistive Technology
PARTIAL ACCESS
s47E(d) – certain operations of agency
Document
Page
Description
Access Decision
Applicable exemptions
number
number
9
81-88
Assistive Technology
PARTIAL ACCESS
s47E(d) – certain operations of agency
10
89-99
Assistance Animal
s47E(d) – certain operations of agency
PARTIAL ACCESS
11
100-109
Assistance Animal
s47E(d) – certain operations of agency
PARTIAL ACCESS
s47F – personal privacy
12
110-120
Capacity Building
s47E(d) – certain operations of agency
PARTIAL ACCESS
13
121-128
Assistive Technology
s47E(d) – certain operations of agency
PARTIAL ACCESS
