Date: Mon, 06 Oct 2025 06:06:56 +0000 Subject: Freedom of Information request - External review of NDIA FOI 24/25-1953 From: David Wright <[FOI #13802 email]> To: OAIC - FOI <[email address]> ************************************************************************** CAUTION: This email originated from outside of the organisation. Do not click links or open attachments unless you recognise the sender and know the content is safe. ************************************************************************** Dear Office of the Australian Information Commissioner, I hereby request an external review from the Office of the Australian Information Commissioner (OAIC) of the NDIA's response to my FOI request FOI 24/25-1953, available here: https://www.righttoknow.org.au/request/review_of_case_management_guide#incoming-43637 The agency’s decision letter of 3 October 2025 states that sections of the documents have been deleted on the grounds that the deleted material is considered exempt under 47C – Public interest conditional exemptions – deliberative processes. It explains the following: ‘Paragraph 6.233 of the FOI guidelines provides a non-exhaustive list of public interest factors against disclosure. The factors I find relevant to this request are that release of this information could reasonably be expected to: • Inhibit agency staff from providing full and frank advice in future deliberations, thereby reducing the quality of the agency’s decision-making process. • Prejudice the agency’s ability to develop and finalise coherent, considered guidance material, as the comments reflect preliminary views and enquiries that are not meant to represent a final guidance position. While I accept 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 withholding the internal comments from release, as disclosure could reasonably be expected to prejudice the quality and integrity of the agency’s deliberative processes.’ I make the following points in response: 1) None of the items in the list of public interest factors against disclosure contained at paragraph 2.233 of the FOI guidelines mention the two factors cited in the agency’s decision letter. In fact, there is nothing in this entire list that even broadly resembles the agency’s two cited factors. 2) The decision letter does not meet the threshold for ‘reasonably expected to’. This threshold is explained at paragraphs 6.13 to 6.16 of the FOI guidelines, which clarifies that there must be more than merely an assumption or allegation that damage may occur if the document is released. I refer in particular to paragraph 6.16, which states ‘The mere risk, allegation, possibility, or chance of prejudice does not qualify as a reasonable expectation. There must be, based on reasonable grounds, at least a real, significant or material possibility of prejudice’. The agency’s decision letter simply alleges that release of the documents would prejudice the quality and integrity of the agency’s deliberative processes, without giving any reasoning or evidence validating this allegation. Further, it does not give any reasoning or evidence to arrive at a conclusion that such prejudice is a ‘real, significant or material possibility’. 3) The first factor cited in the agency’s decision letter gives no reasoning or evidence validating the assertion that disclosure of the information would ‘inhibit agency staff from providing full and frank advice in future deliberations’. 4) The first factor cited in the agency’s decision letter does not give sufficient weight to paragraph 6.249-6.250 of the FOI guidelines, which state ‘Public servants are expected to operate within a framework that encourages open access to information and recognises Government information as a national resource to be managed for public purposes (ss 3(3) and (4)). In particular, the FOI Act recognises that Australia’s democracy is strengthened when the public is empowered to participate in Government processes and scrutinise Government activities (s 3(2)). In this setting, transparency of the work of public servants should be the accepted operating environment and fears about a lessening of frank and candid advice correspondingly diminished … Agencies should therefore start with the assumption that public servants are obliged by their position to provide robust and frank advice at all times and that obligation will not be diminished by transparency of government activities’. 5) The second factor cited in the agency’s decision letter gives no reasoning or evidence validating the assertion that disclosure of preliminary views and enquiries would ‘prejudice the agency’s ability to develop and finalise coherent, considered guidance material’. 6) It is common practice, and common public knowledge, that guidance material is produced within government in iterative draft forms, based usually on preliminary views and enquiries that are then developed and refined over time. It is in the public interest for the public to know what preliminary views and enquiries were taken in respect of producing such guidance material, because it allows increased scrutiny, discussion, comment, and review of government held information. Yours faithfully, David Wright ------------------------------------------------------------------- Please use this email address for all replies to this request: [FOI #13802 email] Is [OAIC request email] the wrong address for Freedom of Information requests to Office of the Australian Information Commissioner? If so, please contact us using this form: https://www.righttoknow.org.au/change_request/new?body=oaic This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at: https://www.righttoknow.org.au/help/officers Please note that in some cases publication of requests and responses will be delayed. If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page. -------------------------------------------------------------------