Our reference: FOI 24/25-1405
7 April 2025
David Wright
By email: foi+request-12874-707095ea@righttoknow.org.au
Dear David Wright
Freedom of Information request - Notification of Decision
Thank you for your correspondence of 26 February 2025, seeking access under the Freedom of Information Act 1982 (FOI Act) to documents held by the National Disability Insurance Agency (NDIA).
The purpose of this letter is to notify you of my decision on your application.
Scope of your request
You requested access to the following documents:
“1) The number of AAT/ART matters where the NDIA has engaged Dr Pincus (regardless of whether these matters reached the stage of a hearing or not). 2) The total amount of payments made by the NDIA to Dr Pincus for all his services for these matters. Please incorporate within your response to items (1) and (2), all ART/AAT matters where the NDIA has engaged this expert directly, and also indirectly via any external law firm. That is, if an external law firm has engaged the expert on behalf of the NDIA for a matter, and has made any payments to the expert on behalf of the NDIA for that matter, this information should be included in your response.
Please note that, regarding the total amount of payments in item (1), I only request a single total figure. I do not request that the payments be broken down for each individual AAT/ART matter. Copies of payment invoices and the like are also not requested.”
The purpose of this letter is to notify you of my decision on your application.
Extension of time
The due date for providing you with a decision on your application is 27 April 2025, following your consent on 13 March 2025, to extend the statutory timeframe by 30 days under section 15AA of the FOI Act.
Decision on access to documents
I am authorised to make decisions under section 23(1) of the FOI Act. My decision on your application and the reasons for my decision are set out below.
I have interpreted your request to be for access to information presented in a data report.
Section 17(1)(c) of the FOI Act provides that, in circumstances where it appears to an agency that an applicant seeks access to information that is not available in a discrete form in a written document held by the agency, but the agency could produce a written document containing the information in a discrete form, by use of equipment ordinarily available to the agency, the agency is to deal with the request as if it were a request for access to a document so produced.
In this instance, the NDIA is unable to produce a document under section 17(1)(c). The reasons for this are set out in this letter. I have therefore decided to refuse your request on the basis that it is not a request for a “document of the agency” as defined in section 4 of the FOI Act. This section states that a document of an agency is a document in the possession of an agency. In the present case, the NDIA does not possess the information you seek and it is not possible to produce a document under section 17(1)(c).
In reaching my decision, I took the following into account:
- your correspondence outlining the scope of your request
- the FOI Act
- the FOI Guidelines published under section 93A of the FOI Act
- consultation with relevant officers of the NDIA
- the NDIA’s operating environment and functions
Why I intend to refuse your request
I have refused access to the information you requested under section 24A of the FOI Act on the basis that documents containing such information are unlocatable or do not exist.
Relevant law
Under the FOI Act, a person has a right to be given access to documents of an agency. However, the right of access is subject to limitations, including grounds for refusal of access.
Section 24A of the FOI Act states that an agency may refuse a request for access to a document if all reasonable steps have been taken to find the document and the agency is satisfied that the document cannot be found or does not exist.
I have made enquiries with staff in the NDIA’s Data and Reporting team in the Information Release, Privacy and Legal Operations branch. These enquiries have revealed that the NDIA does not hold the information necessary to produce a document containing the information you have requested.
The NDIA does not hold any information regarding if or when Dr Pincus was engaged for their opinions at any AAT/ART matters by external law firms. Therefore, the NDIA is unable to produce a document containing the information you have requested.
Whilst I acknowledge your request for consultation, with the potential to narrow the scope such as a date range, as previously mentioned to yourself on 26 February 2025 “the Agency does not collect data on costs or number of matters where individual experts are engaged by external law firms”.
Further enquiries held with staff in the Data and Reporting team confirmed that any reduction in date range would not remove the inability of the agency to produce a document in accordance with section 17. To note, any documentation on the number of and specific costs associated with the engagement of Dr Pincus by an external law firm on behalf of the agency would be held by these external firms.
Based on the information I received from Data and Reporting team, I consider there are reasonable grounds to be satisfied that documents containing the information you seek do not exist. I therefore refuse access to the information under section a 24A of the FOI Act on the basis that the information is does not exist.
Rights of review
Your rights to seek a review of my decision, or lodge a complaint, are set out at Attachment A.
If you have any enquiries about this matter, please contact me by email at foi@ndis.gov.au.
Yours sincerely
Kate (KIM627)
A/Assistant Director – Freedom of Information
Non Personals Team
Information Release, Privacy and Legal Operations Branch
Reviews and Information Release Division
Attachment A
Your review rights
Internal Review
The FOI Act gives you the right to apply for an internal review of this decision. The review will be conducted by a different person to the person who made the original decision.
If you wish to seek an internal review of the decision, you must apply for the review, in writing, within 30 days of receipt of this letter.
No particular form is required for an application for internal review, but to assist the review process, you should clearly outline your grounds for review (that is, the reasons why you disagree with the decision). Applications for internal review can be lodged by email to redacted or sent by post to:
Freedom of Information Section Complaints Management and FOI Branch General Counsel Division National Disability Insurance Agency GPO Box 700 CANBERRA ACT 2601
Review by the Office of the Australian Information Commissioner
The FOI Act also gives you the right to apply to the Office of the Australian Information Commissioner (OAIC) to seek a review of this decision.
If you wish to have the decision reviewed by the OAIC, you may apply for review within 60 days of receiving this letter.
You can apply to the OAIC for review in the following ways:
- Online: www.oaic.gov.au
- Post: GPO Box 5218, Sydney NSW 2001
- Email: enquiries@oaic.gov.au
- Phone: 1300 363 992 (local call charge)
Complaints to the Office of the Australian Information Commissioner or the Commonwealth Ombudsman
You may complain to either the Commonwealth Ombudsman or the OAIC about actions the NDIA took in relation to your request. The Ombudsman will consult with the OAIC before investigating a complaint about the handling of an FOI request.
You can make a complaint to the OAIC using the contact details identified above, or to the Ombudsman by:
- Phone: 1300 362 072 (local call charge)
- Email: ombudsman@ombudsman.gov.au
Your complaint should set out the grounds on which you consider the OAIC or the Ombudsman should investigate the NDIA’s handling of your FOI request.