Dear Office of the Australian Information Commissioner,

I hereby request an external review from the Office of the Australian Commissioner (OAIC) of the NDIA's response to my FOI request FOI 24/25-2051 – see https://www.righttoknow.org.au/request/r...

Document number 2 has only been partially released, on the basis of the following exemptions: s22 (irrelevant material), s47F (personal privacy), s47C (deliberative process).

I have no objections to sections of document 2 being redacted for reasons of irrelevant material.

However, the entirety of pages 14 to 26 of the document bundle have been removed pursuant to section 47C (deliberative processes) and section 47F (personal privacy).

As regards deliberative processes, the agency’s decision letter states that disclosure would result in ‘harm’, because it ‘could reasonably be expected to hinder the Agency’s thinking processes and the ability of Agency staff to comply with their obligations and make informed decisions, which, in turn, helps to ensure the integrity of the National Disability Insurance Scheme and assists in carrying out the Agency’s functions’.

I challenge these reasons, on the following grounds:

1) 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’.

2) The agency’s decision letter gives no reasoning or evidence validating the assertion that disclosure of the information would hinder ‘the ability of Agency staff to comply with their obligations and make informed decisions’.

3) 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’.

4) It is in the public interest for the public to see these materials, because it allows increased scrutiny, discussion, comment, and review of government held information. As set out in the FOI Guidelines, public interest factors favouring access are that it informs the community of the Government’s operations, including, in particular, the policies, rules, guidelines, practices and codes of conduct followed by the Government in its dealings with members of the community, reveals the reason for a government decision and any background or contextual information that informed the decision, and enhances the scrutiny of government decision making. All of these factors apply in this instance. Further, another stated public interest factor favouring access is that it informs debate on a matter of public importance, including to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official, or reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct. That is directly relevant in this matter, as the subject of my FOI request concerns complaints about breaches by the agency of its Model Litigant Obligations.

I therefore request that the OAIC investigates the agency’s redaction of the entirety of pages 14 to 26 of the document bundle on the stated grounds of section 47C (deliberative processes), and that OAIC concurrently reviews the agency’s redaction of any information in this bundle on the grounds of section 47F (personal privacy).

Yours faithfully,
David Wright

Dear Alex

I note that you have said you are unable to access the Right to Know link that I included in my request.

I may have included the wrong link.

Please try this link instead:

https://www.righttoknow.org.au/request/b...

You can also see my FOI request (containing all my coresponence with the agency, and it's decison letter) in the 'My requests' page of my account on the Right to Know website - at this link:

https://www.righttoknow.org.au/user/davi...

The title of my FOI request on this page is 'Briefings by Matthew Swainson'.

You have asked that I provide a copy of the initial decision and any correspondence between me and the agency about my request. All of this is contained in the Right to Know website. I did not correspond with the agency outside the website so I am not sure how I can supply it to you.

You have suggested that I “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.”

I do not understand what you are suggesting here, so you may need to clarify.

Unless the links that I have provided above are sufficient for you to locate the information and accept my request.

Thank you
David Wright

Dear Alex

Please disregard my previous message. The correct link for my FOI request was the one included in my original request for review by OAIC, being:

https://www.righttoknow.org.au/request/r...

And the title of the request on the 'My requests' page of my account on the Right to Know website was 'Reference documents relating to Model Litigant Obligations (MLO)', so you can access it via that avenue as well.

Yours sincerely,
David Wright