External review of NDIA FOI 24/25-1953
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/r...
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
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Kind regards
Office of the Australian Information Commissioner
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Our reference: MR25/02080
By email: [FOI #13802 email]
Receipt of your IC review application
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Yours sincerely,
Office of the Australian Information Commissioner
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Our reference: MR25/02080
Agency reference: FOI 24/25-1953
Applicant: David Wright
Agency: National Disability Insurance Agency
By email: [FOI #13802 email]
Your Information Commissioner review application
Dear David,
Why we are writing to you:
I am writing to you to help you make a valid Information Commissioner
review (IC review) application.
On 06 October 2025, you applied for IC review about an access refusal
decision made by the Agency, referenced at the top of this email, under
the Freedom of Information Act 1982 (Cth) (the FOI Act). This was because
you indicated you had not received a decision by the due date and disagree
with the FOI decision.
At this time, it appears your application was submitted out of time. The
last day for you to apply for IC review was 05 September 2025. This is
because, for access refusal decisions, the timeframe for applying for an
IC review (60 days) starts from when you received or should have received
a decision.
To assist, I have included a summary of the processing timeframe:
o 09 May 2025: FOI request made (due 08 June 2025) - As 08 June 2025
falls on a Sunday, the final day to notify the Applicant of decision
is Monday 09 June 2025.
o 21 May 2025: s 15AA extension of time agreed to by Applicant (30 days
granted) (due 08 July 2025)
o 08 July 2025: Deemed refused
o 03 October 2025: Purported original decision notified by Agency
o 05 September 2025: Last day for applying for IC review under s 54S
o 06 October 2025: IC review application received (31 days overdue)
Action required by you by 16 October 2025:
o If you wish to seek an extension of time to apply for IC review under
s 54T of the Freedom of Information Act 1982 (Cth), please tell us why
your application was late. The Information Commissioner may take the
following factors into account:
o the length of the delay in applying for IC review
o the reason for the delay
o any action taken by the applicant regarding the decision after the
agency or minister made their decision
o any prejudice to the agency or the minister and the general public due
to the delay and
o the merits of the substantive IC review application.
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(after you log into your Right to Know account) showing the FOI
request in question. Alternatively, you may wish to upload this
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The date of the FOI decision.
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the agency or minister made their decision
iv. any prejudice to the agency or the minister and the general
public due to the delay and
v. the merits of the substantive IC review application [2.15]
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As such, if you do not provide the information we need for the IC review
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Assistance
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Kind regards,
[3][IMG] Intake and Eligibility Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P: 1300 363 992
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and Elders past and present.
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Dear OAIC
The timeline in your email contains the entry '08 July 2025: Deemed refused'.
I received no correspondence from the agency on 8 July advising me of the deemed refusal.
That decision letter I eventually received on 3 October states '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.'
60 days from 3 October 2025 is 2 December 2025.
I submitted my request for review by OAIC on 6 October 2025, 57 days prior to the expiry of this 60-day timeframe.
Either the information in your email is incorrect, or the NDIA has mis-informed me of the applicable timeframe. Either way, I sould not be penalised for this.
Yours sincerely,
David Wright