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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Office of the Australian Information Commissioner
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Our reference: MR25/02080
By email: [FOI #13802 email]
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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.
o Please provide a copy of any notification emails sent by the Right to
Know website's administrator about the FOI request, a screenshot of
the 'My requests' page of your account on the Right to Know website
(after you log into your Right to Know account) showing the FOI
request in question. Alternatively, you may wish to upload this
correspondence (potentially with your email address removed) as plain
text on the Right to Know webpage of the FOI request in question and
provide us with confirmation of this.
Participation in IC review process:
You are required to comply with the [1]Direction as to certain procedures
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o The applicant must provide the IC with information about the FOI
decision, in particular:
The date of the FOI decision.
o In most cases, an application for IC review must be made within 60
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decision to refuse access to some or all of the documents
requested, or within 30 days of a decision granting access to
documents to another person.
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to extend the time to apply for IC review. In considering what is
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i. the length of the delay in applying for IC review
ii. the reason for the delay
iii. any action taken by the applicant regarding the decision after
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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earliest opportunity within the period provided for response, and no
later than 2 days before that period is due to expire. Requests for
more time must explain the exceptional circumstances that necessitate
additional time and propose a new date for response. Approval of an
extension request is at the discretion of the OAIC [2.22]
o The OAIC expects that applicants and agencies will engage with the IC
review process, with respect and courtesy [2.23]
As such, if you do not provide the information we need for the IC review
application by 16 October 2025, we intend to close your IC review
application.
Assistance
If you are unable to respond by 16 October 2025, you must request more
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Requests for more time must explain why you need more time, and you must
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respondent at any time.
If you require assistance regarding this email, please contact us at
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Please quote the reference at the top of this email in all correspondence.
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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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
Our reference: MR25/02080
Agency reference: FOI 24/25-1953
By email: [1][FOI #13802 email]
Extension of time decision under s 54T of the FOI Act
Dear Mr Wright
Thank you for your response to our email of 9 October 2025 inviting you to
request an extension of time under s 54T of the Freedom of Information Act
1982 (the FOI Act) to apply for an Information Commissioner review (IC
review). Your IC review application relates to an access refusal decision
made by the National Disability Insurance Agency (the Agency) under the
FOI Act.
I refer to your IC review application about a deemed access refusal
decision made by the Agency under the Freedom of Information Act 1982 (the
FOI Act). As your IC review application has been made outside of the
60-day timeframe in s 54S of the FOI Act due to a deemed access refusal, I
have considered the lodgement of your IC review application to be an
extension of time request under s 54T of the FOI Act pursuant to para.
10.48 of the Freedom of information guidelines.
Your IC review application has been made outside of the statutory
timeframe in s 54S of the FOI Act, as indicated by the following timeline:
o 09 May 2025: FOI request made (due 08 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 06 September 2025: Last day for applying for IC review under s 54S
o 06 October 2025: IC review application received (30 days overdue)
Although you wish to apply for IC review of the Agency’s purported
original decision of 3 October 2025, I note that the IC reviewable
decision is the Agency’s deemed access refusal decision of 8 July 2025.
Additionally, in our email of 9 October 2025 it was stated that your
application was received 31 days overdue, however on further review we
note it is 30 days overdue.
As a delegate of the Information Commissioner, I am authorised to make
decisions on extension of time requests under s 54T of the FOI Act.
In making my decision under s 54T of the FOI Act, I have considered the
following factors:
o the length of the delay in applying for IC review was not excessive,
being 30 days; and
o lack of communication from the Agency notifying you that the access
decision has been made deemed.
Based on the information before the OAIC, I am satisfied that granting an
extension of time under s 54T of the FOI Act is reasonable in all the
circumstances.
I have decided under s 54T of the FOI Act to grant your extension of time
request.
As such, your IC review is taken to have been lodged within the statutory
timeframe. We will write to you about the progress of your IC review in
due course.
If you would like to discuss this matter, I can be reached by email at
[2][email address]. Please quote the reference number at the top of this
email in all correspondence.
Review rights
Judicial review
If you disagree with the OAIC’s decision you can apply to the Federal
Court of Australia or the Federal Circuit Court for a review of a decision
of the Information Commissioner if you think that a decision by the
Information Commissioner to grant an extension of time is not legally
correct. You can make this application under the Administrative Decisions
(Judicial Review) Act 1977.
The Court will not review the merits of your case but it may refer the
matter back to the Information Commissioner for further consideration if
it finds the decision was wrong in law or the Information Commissioner’s
powers were not exercised properly.
An application for review must be made to the Court within 28 days of the
OAIC sending the decision to you. You may wish to seek legal advice as the
process can involve fees and costs. Please contact the Federal Court
registry in your state or territory for more information, or visit the
Federal Court website at [3]http://www.fedcourt.gov.au/.
Making a complaint to the Commonwealth Ombudsman
If you believe you have been treated unfairly by the OAIC, you can make a
complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's
services are free. The Ombudsman can investigate complaints about the
administrative actions of Australian Government agencies to see if you
have been treated unfairly.
If the Ombudsman finds your complaint is justified, the Ombudsman can
recommend that the OAIC reconsider or change its action or decision or
take any other action that the Ombudsman considers is appropriate. You can
contact the Ombudsman's office for more information on 1300 362 072 or
visit the Commonwealth Ombudsman’s website at
[4]http://www.ombudsman.gov.au.
Accessing your information
If you would like access to the information that we hold about you, please
contact [5][email address]. More information is available on
the [6]Access our information page on our website.
Kind regards,
Aleksandra
[7][IMG] Intake and Eligibility Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P: 1300 363 992
W: [8]Enquiry form
Notice:
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