Freedom of Information request and opportunity to make submission

FOI-2 23/24-1100 DOCUMENT 12

OFFICIAL: SENSITIVE

Our reference: FOI 23/24-XXX Your reference: XXXX

13 May 2024

Full name Position (if applicable) Organisation (if applicable) Street Address SUBURB STATE POSTCODE By email: (e.g. John.smith@email.com.au)

Dear Mr/Mrs/Ms Last name

The National Disability Insurance Agency (NDIA) has received a request under the Freedom of Information Act 1982 (FOI Act) seeking access to documents held by the Agency.

In processing this request, the Agency has identified a/document/s falling within scope that contains personal information and your business information.

The participant has given consent for us to identify them as……..

I attach a copy of the documents for which we are seeking your view on release.

Third Party Consultation – Personal Privacy and Business Information

We are consulting with you on grounds of both Personal Privacy and Business. I shall address each of these grounds separately.

Personal Information

The term ‘personal information’, is defined in the Freedom of Information Act 1982 (FOI Act) as follows:

‘information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.

Section 27A of the FOI Act provides that the Agency must not release a document without first giving a third party reasonable opportunity to submit a contention that the document should not be released to the applicant, where:

a. the document contains personal information about that third party; and b. it appears that the third party might wish to contend that their personal information should not be disclosed.

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If you wish to contend that the personal information contained within the document/s is/are exempt and should not be released, please advise the Agency.

Factors where section 47F of the FOI Act could be relevant to the question of whether disclosure of the personal information would be unreasonable include (but are not limited to): a. how well known the information is; b. whether the person referred to in the document is, or was known to be associated with the matters dealt with in the document; and c. whether the information is available from publicly accessible sources.

Business Information

Similarly, section 27 of the FOI Act provides the agency must not release a document without first giving a person or organisation reasonable opportunity to make a submission in support of the contention, where:

it contains information about a person’s business or professional affairs, or an organisation’s commercial or financial affairs; and
it appears that the person or organisation might reasonably wish to contend that the business information is: exempt under section 47; or conditionally exempt under section 47G.

Section 47 - Trade secrets or commercially valuable information

Section 47 of the FOI Act provides that a document is exempt from disclosure where its disclosure would reveal trade secrets or would or could reasonably be expected to destroy or diminish commercially valuable information contained in the document.

I seek your comments on whether disclosure of any of the enclosed documents would involve the disclosure of trade secrets or commercially valuable information.

Section 47G - Business, commercial or financial affairs

Under section 47G of the FOI Act, there is provision, subject to public interest considerations (discussed below), to conditionally exempt from release the business information where release of the information:

would, or could reasonably be expected to, unreasonably affect you or your organisation in respect of lawful business, commercial or financial affairs; or
could reasonably be expected to prejudice the future supply of information to the Commonwealth.

Next Steps

Can you please advise regarding the following:

whether the release of your personal information contained within the document/s would be unreasonable specified in section 47F of the FOI Act;
whether, in the circumstances, disclosure of the documents would be contrary to the public interest and why;
whether a section 47G conditional exemption, applies to the information; and
in the case of section 47G, explain why disclosing the business information in the document would, in the circumstances, be contrary to the public interest.

If you make a submission objecting to the release of a document, please take care to ensure that your submission clearly sets out the grounds on which the exemption is sought. Please note that it will not be sufficient to assert that certain documents should not be disclosed without providing reasons.

Please also note that any comments you make, may be communicated to the applicant when providing reasons for the agency’s decision.

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Rights of review

If you make a submission objecting to the release of a document, the Agency’s decision- maker must consider your objections but is ultimately obliged to make their own decision on release of the document.

However, if the decision maker decides to release a document (with or without deletions) and this decision is contrary to your objections, this document cannot be released to the applicant until you have been given an opportunity to apply for review of the decision.

Time Frame

Any submission you make regarding the release of the enclosed documents would be appreciated as soon as possible, but no later than COB Date Month Year. This will allow the Agency to comply with the statutory time frame for processing your request.

If the Agency does not receive a response by this date, it will be assumed that you have no objection to the release of the documents.

Comments should be in writing and can be emailed to me via foi@ndis.gov.au. If you have any questions about this matter, please do not hesitate to contact me at this same email address.

Yours sincerely

Name Delegation Complaints Management & FOI Branch General Counsel Division

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