Our reference: FOI 24/25-1693
GPO Box 700
Canberra ACT 2601
1800 800 110
9 September 2025
ndis.gov.au
Andrew Smith
Right to Know
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx 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* The "AAI Quick Guide: Delegations and Authorisations" or, if that document is no
longer current, any comparable document.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…”
1
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.
2
link to page 3
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.
1
Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82.
3
link to page 4
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,
2
Re Colin James Corkin and Department of Immigration and Ethnic Affairs [1984] AATA 448 [14].
4
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 xxx@xxxx.xxx.xx.
Yours sincerely
Helen
(HIL533) Senior Freedom of Information Officer
Information Release, Privacy and Legal Operations Branch
Reviews and Information Release Division
5
Attachment A
Schedule of Documents for FOI 24/25-1693
Document
Page
Description
Access Decision
Comments
number
number
1
1-44
NDIS Act 2013 – Instrument of Delegation 1 of 2025
PARTIAL ACCESS
Exemption claimed:
Date: 1 January 2025
Section 47F - personal privacy
2
45-120
NDIA – Accountable Authority Instructions (AAIs)
FULL ACCESS
v5.0
Date: February 2025
3
121-124
NDIA Board meeting notes – Accountable Authority
PARTIAL ACCESS
Instructions
Exemption claimed:
Section 42 – legal professional
Date: 24 October 2024
privilege
3.1
125-203
Attachment A
FULL ACCESS
NDIA – Accountable Authority Instructions (AAIs)
v5.0
Date: September 2024
3.2
204
Attachment B
ACCESS REFUSED
Background from Legal on Discretionary financial
Exemption claimed:
assistance and defective administration
Section 42 - legal professional privilege
Date: Undated
Document
Page
Description
Access Decision
Comments
number
number
3.3
205-207
Attachment C
FULL ACCESS
Financial Authorisation changes (Quick Reference)
Date: Undated
4
208-211
Chief Executive Brief – NDIS Act 2013 Operations
PARTIAL ACCESS
Instrument of Delegation – 1 of 2025
Exemption claimed:
Section 47F - personal privacy
Date:23 December 2024
5
212-213
AAIs Quick Guide – Delegations and Authorisations
FULL ACCESS
Date: May 2025
5.1
214-215
AAIs Quick Guide – Duties of Officials
FULL ACCESS
Date: May 2025
5.2
216-217
AAIs Quick Guide – Indemnities and other
FULL ACCESS
contingencies
Date: May 2025
5.3
218-264
Human Resources - Delegation (No.1) 2024
PARTIAL ACCESS
Exemption claimed:
Date: 17 April 2024
Section 47F - personal privacy
6
265
Register – Instruments of Delegation
FULL ACCESS
Date: Undated
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 xxx@xxxx.xxx.xx 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:
xxxxxxxxx@xxxx.xxx.xx
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:
xxxxxxxxx@xxxxxxxxx.xxx.xx
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.
