OAIC reference: MR25/02080 NDIA reference: FOI 24/25-1953
GPO Box 70
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Can
Ca berra ACT 2601
2601
1800 80
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15 January 2026
ndis.gov.au
ov.a
Melih Sayan
By email: xxxxx@xxxx.xxx.xx
Right to Know David Wright
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Melih and David,
Preliminary submission by the NDIA in support of exemptions
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 3 October 2025.
OAIC requested that we engage with the applicant to resolve or narrow the issues in dispute
and that submissions be sent to the applicant at the same time they are sent to the OAIC.
The purpose of this letter is to provide both parties with the information in support of the
exemptions claimed.
Background
1. On 9 May 2025, the FOI applicant lodged a FOI request for:
'I refer to FOI 24/25-0913, which provides a single document - 'Case Management Guide -
Applied Behavioural Analysis (ABA) - Draft'
The decision letter states:
'Please note that the document is currently under review and therefore in draft form. The
previous version of this document is the obsolete document developed by the Quality,
Strategy and Training Team that was determined to be irrelevant to your request.'
Please provide all information in relation to this document, since the request of FOI 24/25-
0913. This might include (but is not limited to):
- Further draft versions of the document.
- Any final version of the document.
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- All internal agency correspondence about this document (e.g. emails, briefings, approvals).
- The relevant qualifications of the person or persons involved in the review and drafting
process'.
2. On 3 December 2025, OAIC notified NDIA of an IC review stating that the ‘…
applicant contests the reasons for refusing access…’. The applicant was contesting
the application of section 47C exemption in particular.
3. NDIA revisited the decision and consulted with the decision maker and their access
officer.
4. They advised that they had consulted with the Continuous Improvement Branch who
confirmed that no final version had existed of the document ‘Case Management
Guide - Applied Behavioural Analysis (ABA)‘ and the information redacted under
section 47C was deliberative matter.
5. They also advised that the redactions in documents 2 and 3 under section 47C were
the same or similar deliberative content redacted in documents 5 and 6 and applied
the same exemptions to remain consistent.
6. While liaising with the decision maker, they advised that upon reflection, thought that
s47E(d) might also be able to be applied to the material alongside section 47C.
7. The NDIA engaged with the applicant to narrow or resolve the issues and on 11
January 2025, the applicant confirmed that he was after full access to the
documents.
8. The NDIA has relied upon their consultations and the FOI decision and stand by the
exemptions applied to the documents and note that the FOI applicant has received
the draft guide and documents he has requested.
Exemptions
Application of section 47C
9. The Case Management Guide - Applied Behavioural Analysis document within scope
of the FOI request, is an internal NDIA guide document that has been developed by
the Agency for the exclusive use by Case Managers.
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10. NDIA submits that parts of the documents released, are exempt under section 47C
and notes that no final versions exist, so any exchange of opinions, advice or
recommendations recorded and obtained during the deliberative process while
drafting this guide, are exempt under s47C.
11. In these circumstances, NDIA are satisfied that parts of the documents are
conditionally exempt under section 47C and that disclosure would or could
reasonably be expected to have substantial adverse effect on the proper and efficient
conduct of the operations of NDIA.
12. 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.
13. 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,
• 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
14. 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
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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.
15. OAIC’s guidelines provides a non-exhaustive list of factors against disclosure which
NDIA have also considered.
16. 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 and contributing openly in an efficient and
effective manner,
c. It could reasonably be expected to discourage and reduce the high quality of
future evaluations, opinions, competing arguments or recommendations
during a deliberative process, 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,
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
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Preliminary application of section 47E(d)
17. 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.
18. NDIA would like to also state that there is also strong interest in withholding the
information from disclosure and conditionally exempting them under section 47E(d)
being:
a. That it could reasonably be expected that disclosure of the information would
have substantial adverse effect on the operations of the Agency and
undermine and reveal the internal methodologies or operations during a
deliberative process
19. Having regard to the likely extensive and substantial damage that disclosure of the
information would cause to the Agency's operations and to the Scheme as a whole
(as described above), the Agency contends that OAIC should be satisfied that
disclosure of the conditionally exempt information in parts of each document within
scope of the request would be contrary to the public interest.
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 xxx@xxxx.xxx.xx.
Yours sincerely
SussanJ.
Sussan (SJL495)
Senior Freedom of Information Officer
Information Access and Privacy
Reviews and Information Release Division
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