FOI-2 23/24-1100 DOCUMENT 21
Our reference: FOI 23/24-XXXX Your reference: XXXX
GPO Box 700 Canberra ACT 2601 1800 800 110 13 May 2024 ndis.gov.au
First and Last Name Position (if applicable) Organisation (if applicable) Street Address SUBURB STATE POSTCODE
By email: (e.g. John.smith@email.com.au)
Dear First and Last name
Freedom of Information request — Notification of Decision
Thank you for your correspondence of [Date Month Year], in which you requested access to documents held by the National Disability Insurance Agency (NDIA), under the Freedom of Information Act 1982 (FOI Act).
The purpose of this letter is to provide you with a decision on your request.
Scope of your request
For personal: You have requested access to documents from the NDIS file of (no salutation) First and Last name (CRM Ref: XXXXXXXX). Specifically, you requested access to:
“[Verbatim request]” (Please insert [sic] after any spelling or grammatical mistakes in the original quoted request.)
For non-personal: You have requested access to the following documents:
“[Verbatim request]” (Please insert [sic] after any spelling or grammatical mistakes in the original quoted request.)
If applicable: You have revised the scope of your request to be for the following documents:
“[Verbatim revised request]” (Please insert [sic] after any spelling or grammatical mistakes in the quoted request.)
If applicable: I am satisfied that you have the authority to receive the requested information on behalf of [First and Last name].
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If applicable: Extension of time
On XXX, you agreed to an XX-day extension of time under section 15AA of the FOI Act, making DD Month YYYY the new date to provide you with a decision on access.
On XXX, the Office of the Australia Information Commissioner (OAIC) granted us an XX-day extension of time under section 15AB of the FOI Act, making DD Month YYYY the new date to provide you with a decision on access.
Decision on access to documents
I am authorised to make decisions under section 23(1) of the FOI Act. My decision on your request and the reasons for my decision are set out below.
If applicable: Section 17(1)(c) of the FOI Act provides that an agency can produce a written document containing the requested information, by the use of a computer or other equipment that is ordinarily available for retrieving or collating stored information. We have been able to produce a document(s) containing some of the information you requested. I have, therefore, treated your request as if it were a request for access to this/those documents in accordance with section 17(1)(c) of the FOI Act.
I have identified XX document(s), (including attachments), which fall within the scope of your request.
For personal: The document(s) were identified by conducting a search of First and Last name’s NDIS file.
For non-personal: The document(s) were identified by conducting searches of NDIA’s systems, using all reasonable search terms that could return documents relevant to your request, and consulting with relevant NDIA staff who could be expected to be able to identify documents within the scope of the request.
I have decided to:
- grant access to XX document(s) in full
- grant access to XX document(s) in part
- refuse access to XX document(s) in full.
In reaching my decision, I took the following into account (delete as appropriate):
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- your correspondence outlining the scope of your request
- the nature and content of the documents falling within the scope of your request
- the FOI Act
- the FOI Guidelines published under section 93A of the FOI Act
- relevant case law concerning the operation of the FOI Act
- consultation with relevant NDIA staff
- factors relevant to my assessment of whether or not disclosure would be in the public interest
- the NDIA’s operating environment and functions.
Access to edited copies with exempt or irrelevant material deleted (section 22)
If applicable: I have decided that Documents XX contains material that is exempt from disclosure under the FOI Act.
If applicable: I have also identified that Documents XX contains material that is irrelevant to your request. The irrelevant material relates to names and contact details of NDIA staff / information which is not relevant to the subject matter of your request.
In accordance with section 22 of the FOI Act, I have considered whether it is possible to delete the exempt and irrelevant material from the documents and have concluded that it is/not reasonably practicable to do so. Accordingly, I have prepared an edited copy of the documents with the exempt and irrelevant material removed.
Reasons for decision
Deliberative processes (section 47C)
Section 47C of the FOI Act conditionally exempts a document if its release would disclose deliberative matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency.
Paragraph 6.59 of the FOI Guidelines provides that deliberative process generally refers to the process of weighing up or evaluating competing arguments or considerations or to thinking processes – the process of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.
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Document(s) XX contain(s) deliberative matter in the form of opinion, advice and recommendations recorded in the course of assisting NDIA decision-makers to reach a decision regarding the reasonable and necessary supports for to be included in a participant’s NDIS plan, in accordance with section 34 of the National Disability Insurance Scheme Act 2013 (NDIS Act). (revise if necessary)
If required: Section 47C(2) of the FOI Act provides that deliberative matter does not include purely factual material. The FOI Guidelines provide that ‘purely factual material’ does not extend to factual material that is an integral part of the deliberative content and purpose of a document, or is embedded in or intertwined with the deliberative content such that it is impractical to excise it.
I am satisfied that document(s) XX contain information that meets the definition of ‘deliberative matter’. I am also satisfied that to the extent that the parts of the documents that contain factual material, the factual material is an integral part of the deliberative content, or is embedded or intertwined with the deliberative content such that is it impractical to excise.
Therefore, I find that document(s) XX do not contain purely factual material, and are conditionally exempt under section 47C of the FOI Act.
Certain operations of agencies (section 47E(c))
Section 47E(c) 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 management or assessment of personnel by the Commonwealth or by an agency.
Document(s) within the scope of your request relate to a complaint process and contain information produced or obtained in confidence as part of that process. I consider that disclosure of the documents would have a substantial adverse effect on the management of NDIA personnel, in that staff may be reluctant to provide information and cooperate with complaints processes if they were aware that the subject matter of those discussions would be disclosed and made public. That then would, in my view, have a substantial adverse effect on the management of the NDIA’s personnel.
If applicable: While the information contained within these documents does relate to you and/or to a process involving you, disclosure of information about that process, including staff members’ confidential statements, would hamper the NDIA’s ability to obtain confidential information and prejudice its ability to obtain similar information in the future.
Certain operations of agencies (section 47E(d))
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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.
Document(s) XX contain(s) information relating to certain operations of the NDIA, specifically:
internal guidance given to staff in relation to the quantum of supports to include within a participant’s plan in determining the level of supports a participant may require.
The disclosure of this information would reveal methodologies the NDIA uses to assist in determining levels of support provided to NDIS participants, which is to better ensure that participants receive supports that are reasonable and necessary. Any disclosure resulting in the prejudice of the effectiveness of the Agency’s operational methods and procedures would, or could reasonably be expected to, result in the need for the Agency to change those methods and procedures to ensure the future effectiveness and sustainability of the Agency and the Scheme.
I am satisfied that the release of this information would potentially result in the public disclosure of internal methodologies that, through improper use, would, or could, lead to a distortion of funding levels that would substantially and adversely affect the integrity of the NDIS and its financial sustainability. Accordingly, I have decided that the relevant information in Document(s) XX is conditionally exempt under section 47E(d) of the FOI Act.
[OR choose only after considering application of section 22) –
internal single points of contact, for use only by NDIA staff in their work [managing complaints made against the Agency by members of the public.]
Disclosing individual staff contact details may jeopardise the use of single points of contact [to receive feedback and complaints.] I am satisfied that there is a reasonable likelihood of aggrieved members of the public seeking to gain advantage over others by using internal points of contact in place of the appropriate points of contact and that release of this information could reasonably be expected to have an adverse effect on the proper and efficient conduct of the operations of the Agency, namely the Agency’s ability to conduct its operations in a timely and efficient way.
[OR choose only after considering application of section 22) –
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URLs, the disclosure of which would have a serious impact on the Agency’s ability to operate within a secure IT environment.
Accordingly, I find that disclosure of this information would or could reasonably be expected to have a substantial adverse effect on the operations of the Agency and is therefore conditionally exempt under section 47E(d) of the FOI Act.
Personal privacy (section 47F)
Section 47F of the FOI Act conditionally exempts a document(s) if its disclosure would involve the unreasonable disclosure of personal information about any person (including a deceased person).
I have identified material in the documents falling within scope of your request which contains personal information of a third party / third parties.
[OR choose only after considering application of section 22) -
The conditionally exempt material contains references to the middle names / details of personal leave or employment conditions of staff members which have not previously been disclosed to you.
Under section 47F(2) of the FOI Act, in determining whether the disclosure of documents would involve unreasonable disclosure of personal information, regard must be had to:
a. the extent to which the information is well known; b. whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document; c. the availability of the information from publicly accessible sources; and d. any other matters that the agency considers relevant.
Against these criteria, I take the view that:
a. it is apparent from the information that an individual is identifiable; and b. the information referred to above is not readily available from publicly accessible sources.
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With reference to the assessment above, it would be unreasonable to disclose publicly this personal information and is therefore conditionally exempt under section 47F(1) of the FOI Act.
Business Information (section 47G)
Some documents falling within scope of your request contain information that is conditionally exempt from release under section 47G of the FOI Act.
Section 47G of the FOI Act conditionally exempts a document if its disclosure would disclose information concerning a person in respect of their business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in which the disclosure of the information:
- would or could reasonably be expected to, unreasonably affect that person adversely in respect of their lawful business or professional affairs of that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or
- could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.
The information that is conditionally exempt includes sensitive business details of a third party that were provided to the Agency in confidence with an expectation that they would not be disclosed further. The third party has contended that the disclosure of this information would unreasonably affect their business affairs, in that it would infringe on confidentiality agreements and could unfairly affect the lawful operations of their business.
I am satisfied that the disclosure of this information could unreasonably and adversely affect the business affairs of a third party and affect any potential or current business relationship with the Agency.
Public interest considerations – section 47C, 47E(d), 47F and 47G
Section 11A(5) of the FOI Act provides that access to a document covered by a conditional exemption must be provided unless disclosure would be contrary to the public interest.
I have not considered any of the irrelevant factors as set out under section 11B(4) of the FOI Act in making this decision.
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In favour of disclosure, I have considered the factors outlined in section 11B(3) of the FOI Act, and I have determined that disclosure of the relevant information in Documents XX would promote the objects of the FOI Act by providing access to documents held by the government and/or providing access to information relating to the participant.
Against disclosure, I consider that disclosure of the relevant information in Documents XX:
- would not contribute to the publication of information of sufficient public interest to justify the likely harm caused by release
- would not enhance Australia’s representative democracy in the ways described in section 11B(3) of the FOI Act
- would not inform any debate on a matter of public importance, or promote oversight of public expenditure.
While there is limited public interest in the disclosure of information conditionally exempt under section 47C, 47E(d), 47F, 47G of the FOI Act, the harm that would result from disclosure is that it could reasonably be expected to:
- hinder the Agency’s thinking processes and the ability of Agency decision-makers to comply with their obligations and make informed decisions, which, in turn, helps to ensure the financial stability and integrity of the National Disability Insurance Scheme
- prejudice the ability of the Agency to provide guidance to staff and to decision makers in classifying applicants based on support needs in order to comply with their obligations and make informed decisions in relation to the quantum of funding to add to each reasonable and necessary support, which, in turn, helps to ensure the financial stability and integrity of the NDIS
OR
- prejudice the ability of the Agency to protect established contact points and procedures of the Agency
OR
- prejudice the ability of the Agency to protect the security and integrity of information held in the Agency
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- affect an individual’s right to privacy by having their personal information in the public domain
- compromise the business or professional affairs of a third party and interfere with their ability to undertake their lawful business.
In summary, I am satisfied that the factors against disclosure of the information outweigh the factors in favour of disclosure and that, on balance, it would be contrary to the public interest to release this information to you. Accordingly, I have decided that the relevant information in Documents XX is exempt under sections XX of the FOI Act.
Release of documents
The documents for release, as referred to in the Schedule of Documents at Attachment A, is/are enclosed.
Rights of review
Your rights to seek a review of my decision, or lodge a complaint, are set out at Attachment B.
Should you have any enquiries concerning this matter, please do not hesitate to contact me by email at foi@ndis.gov.au.
Yours sincerely
Name Delegation Complaints Management & FOI Branch General Counsel Division
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Attachment A
Schedule of Documents for FOI 21/22-XXXX
| Document number | Page number | Description | Access Decision | Comments |
|---|---|---|---|---|
| 1 | 1-2 | Document Title Date: DD Month YYYY |
FULL ACCESS | Document 1 created under section 17 of the FOI Act |
| 2 | 3-4 | Email Subject: verbatim subject line Date: date of email |
PARTIAL ACCESS Exemption(s) claimed: s47C – deliberative processes s47E(c) – certain operation of agencies s47E(d) – certain operations of agencies s47F – personal privacy s47G – business information |
Irrelevant material removed under section 22 of the FOI Act |
| 2.1 | 5-6 | Attachment to Document 2 Report XYZ |
||
| 2.1.1 | 7-8 | Attachment to Document 2.1 Attachment A to Report XYZ |
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