FOI 53866 Notice of Decision.pdf

Cat
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Cat

Freedom of Information Request 53866 – Decision on access

I refer to the Freedom of Information Act 1982 (FOI Act) request to the Department of Social Services
(Department) on 29 May 2025. The request seeks access to:
[All material previously redacted under s 22 as irrelevant material with the exception of SES phone
numbers and signatures from] the following documents released under LEX 51820 ("Advice and draft
advice to NDIS Minister regarding NDIS supports lists"):

Document 1 (MB24-000611)
Document 2 (MS24-000776)
Document 5 (MS24-001044)

I am authorised to make decisions in respect of FOI requests under subsection 23(1) of the FOI Act.

Decision

I have decided to grant partial access to the documents sought by the request as they contain material that
is:

•  exempt under section 34 (cabinet documents), 42 (legal professional privilege), and 47C
(deliberative processes) of the FOI Act; and/or
•  irrelevant to the request and deleted under section 22 of the FOI Act.

The documents and my decision in relation to each are set out in the Schedule of Documents at
Attachment A (Schedule).

The reasons for my decision are set out in the Statement of Reasons at Attachment B.

Review rights and complaints

Information concerning how you may seek a review of this decision or make a complaint about the
handling of this request is at Attachment C.

Publication

Section 11C of the FOI Act requires agencies to publish details on how to access documents released in
response to FOI requests on their website within 10 days of release unless except where that publication
would be unreasonable.

GPO Box 9820 Canberra ACT 2601
Email  Facsimile  Telephone 1300 653 227
National Relay Service: TTY: 133 677, Speak and listen: 1300 555 727, Internet relay: www.relayservice.com.au
www.dss.gov.au

The documents released in response to this request do not contain any information that would be
unreasonable to publish. As a result, details on how to access them will be published on the Department’s
disclosure log within 10 days of this decision.

Contact
If you would like to discuss any aspect of my decision, please contact me at xxx@xxx.xxx.xx.

Yours sincerely

Heather D
Authorised FOI Decision Maker
30 June 2025

Attachments
A – Schedule of Documents
B – Statement of Reasons
C – Review Rights

ATTACHMENT A
SCHEDULE OF DOCUMENTS

Doc No
Description of document
Decision
1. Ministerial Brief
Release in part
MB24-000611
Section 42 – Legal advice
Section 22 – phone numbers and signatures
2.
Ministerial Brief
Release in part
MS24-000776
Section 34(3) – Cabinet document
Section 47C – Recommendations to Minister
Section 22 – phone numbers and signatures
3.
Ministerial Brief
Release in part
MS24-001044
Section 42 – Legal advice
Section 34(3) – Cabinet document
Section 22 – phone numbers and signatures

ATTACHMENT B
STATEMENT OF REASONS

Material on which the decision is based

1.  I relied on the following material in coming to this decision:

•  the terms of the FOI request;
•  the documents subject to the FOI request;
•  advice from subject matter experts within the Department regarding the nature and sensitivity
of the documents subject to the request;
•  the FOI Act; and
•  the Guidelines issued by the Office of the Australian Information Commissioner under section
93A of the FOI Act (FOI Guidelines).

Section 22 – Irrelevant material

2.  Under section 22 of the FOI Act, the Department may delete material from documents that it
considers irrelevant to the scope of your request.

3.  At the outset of this request, you agreed to exclude the following information from its scope:

a)  all phone numbers and signatures of Senior Executive Service (SES) level government staff.

4.  Where present in the documents, this information has been deleted under section 22 of the FOI
Act.

Section 34 – Cabinet documents

5.  A document subject to the request (as identified in the Schedule) contains material the disclosure
of which would reveal a Cabinet deliberation and decision which has not otherwise been officially
disclosed. I am satisfied that this material is exempt from disclosure under section 34(3) of the FOI
Act.

Section 42 – Legal Professional Privilege

6.  Section 42 of the provides that a document is an exempt document if it is of such a nature that it
would be privileged from production in legal proceedings on the ground of legal professional
privilege.

7.  Certain documents subject to the request (as identified in the Schedule) contain or consist of legal
advice. I am satisfied that privilege over this material has not been waived, and accordingly that it is
exempt under section 42 of the FOI Act.

Section 47C – Deliberative Matter

8.  Section 47C of the FOI Act provides in part that a document is conditionally exempt if its disclosure
would reveal matter (deliberative matter) in the nature of, or relating to, opinion, advice or
recommendations 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. Access to the conditionally exempt document may only be withheld where it is
contrary to the public interest.

9.  A document subject to the request (as identified in the Schedule) contains considerations relating
to agreements with the states and territories. I am satisfied that this information meets the
definition of deliberative matter as set out above and is therefore conditionally exempt under
section 47C of the FOI Act.

ATTACHMENT B

10.  When considering whether access to this deliberative matter is contrary to the public interest, I
acknowledge that access would inherently promote the objects of the FOI Act, demonstrating full
transparency of government. However, providing access would impact the Department’s ability to
negotiate agreements and maintain productive working relationships with the states and
territories. This adverse effect outweighs any benefit that could flow from disclosing that
information.

11.  As a result, I am satisfied that access to the deliberative matter would be contrary to the public
interest and have decided to withhold access to it.

ATTACHMENT C

INFORMATION ON REVIEW RIGHTS

You may seek review of this decision via:

(a) an internal review; or
(b) the Australian Information Commissioner (Information Commissioner).

Internal review

If you apply for internal review, a fresh decision will be made by a different decision-maker within the
Department. An application for internal review must be:

(a) made in writing;
(b) made within 30 days of receiving this letter; and
(c) sent to xxx@xxx.xxx.xx.

The application should also include the reasons why you think this decision should be reviewed.

If the internal review decision results in you not being provided access to all of the documents to which
you have requested access, you have the right to seek a further review by the Information
Commissioner.

Information Commissioner review

You can apply for the Information Commissioner to review this decision either immediately or following
an internal review decision. You must apply to the Information Commissioner within 60 days of the
receipt of this decision letter.

Further details on this process can be found on the Information Commissioner’s website at
https://www.oaic.gov.au/.

COMPLAINTS TO THE INFORMATION COMMISSIONER

You may also make a complaint to the Information Commissioner concerning actions taken by the
Department while exercising its powers or performing its functions under the FOI Act.

Further details on this process can be found on the Information Commissioner’s website at
https://www.oaic.gov.au/.