Our reference: IR 24/25-023 | IR 24/25-024 | IR 24/25-025 | IR 24/25-026
GPO Box 700 Canberra ACT 2601 1800 800 110 ndis.gov.au
8 May 2025
David Wright
By email: foi+request-12874-707095ea@righttoknow.org.au
Dear David Wright
Freedom of Information request — Internal Review Decision
Thank you for your correspondence of 8 April 2024, in which you requested internal reviews of the original decisions made in FOI 24/25-1403, FOI 24/25-1404, FOI 24/25-1405 and FOI 24/25-1406 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 requests for internal review.
Original Decision
On 26 February 2025, you made 4 separate requests for access to documents relating to each of the following ‘Independent Medical Experts’:
“1) The number of AAT/ART matters where the NDIA has engaged Dr Sandbank/Dr McDowell/Dr Pincus/Dr Maclean (regardless of whether these matters reached the stage of a hearing or not).
- The total amount of payments made by the NDIA to Dr Sandbank/Dr McDowell/Dr Pincus/Dr Maclean for all his/her 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.”
1
On 7 April 2025, the NDIA provided you with the Original Decisions in relation to your requests. All 4 decisions were a refusal on the grounds that the documents do not exist and could not be produced under section 17(1)(c) of the FOI Act.
Grounds for Review
On 8 April 2025, you requested internal reviews of the Original Decisions:
You stated that you do not accept the decision and believe the information is available to the agency. You stated the following:
“1) For all AAT/ART matters where external law firms have engaged this expert, it would have done so only on specific instruction of the agency, which is the Respondent in these Tribunal matters. There would be no circumstances where a law firm engaged the expert without the knowledge and approval of the agency.
Such approval to engage the expert would in all instances be documented, such as in agency AAT/ART case files, and/or in itemised invoices from law firms to the agency for the payment of the expert’s services. An example of such information being available to the agency, and released in response to another FOI request, is contained in FOI 24/25-0493. This directly contradicts your claim that the agency does not hold such information, and that documents containing the information I seek do not exist.
In correspondence following my earlier FOI request 24/25-0466… the reason given by the agency for refusing the requested information was that ‘Whilst law firms may itemise expert witness/medical costs as part of their invoice, this level of detail is not captured in the Agency’s matter management system, LEX.’ This clearly indicates that the information IS available to the agency, but just needs to be manually extracted from itemised invoices. Again, this directly contradicts the reason given in response to my current FOI request, that the agency does not hold such information, and that documents containing the information I seek do not exist.”
Decision on your request for internal review
I am authorised to make decisions under section 23(1) of the FOI Act, as well as internal review decision under section 54C of the FOI Act.
2
In undertaking an internal review, I am not bound in any way by the Original Decisions and am required to review the Original Decisions and make fresh decisions in accordance with s54C(3) of the FOI Act.
I have reviewed the Original Decisions and have decided to affirm all 4 Original Decisions. The reasons for my decision are set out below.
In making my decision, I have considered the following:
- your correspondence in relation to your original request
- the Original Decision dated 7 April 2025
- your grounds for seeking an internal review of the Original Decision
- the FOI Act, particularly section 17 and 24A
- the FOI Guidelines published under section 93A of the FOI Act, in particular Parts 2 and 3 which provide commentary on the creation of new documents and guidance on adequacy of searches
- consultation with relevant NDIA staff
- the NDIA’s operating environment and functions.
Reasons for decision
Refuse a request for access (section 24A)
Section 24A of the FOI Act provides 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 relevant NDIA staff in the NDIA’s Legal Operations Team who could reasonably be expected to identify documents within the scope of your requests, and who would have knowledge of ART record keeping practices. These enquiries have revealed that the NDIA is not in possession of a document/s that would contain information matching the scope of your request.
In addition, any documentation on the number of ART matters and specific costs associated with engagements of the experts by external law firms on behalf of the Agency, would likely be held by the firms engaged on those matters.
3
I am satisfied that all reasonable steps have been taken to locate documents matching the scope of your requests and that a discrete document containing the information you are seeking, does not exist.
Production of a document (section 17)
Enquiries with the NDIA’s Legal Operations Team have revealed that information relevant to the scope of your request may be contained amongst other records held by the NDIA.
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 by use of computer or other equipment ordinarily available to the Agency, the Agency shall deal with the request as if it were a request for access to a document so produced.
However, section 17(2) of the FOI Act states that an Agency is not required to produce a document where it would substantially and unreasonably divert the resources of the Agency from its other operations.
As set out in our Original Decisions, the Director of Legal Operations advised that while external law firms may itemise expert witness costs as part of their invoice, this level of detail is not captured in the Agency’s matter management system, LEX. As such, staff would have to manually extract the information on costs of individual experts engaged by external law firms on individual ART matters.
Legal Operations, Legal Practice and Capability staff in the data and reporting team estimated it would take a minimum of 25 hours per expert to extract this information. This includes:
- Searches of over 15,000 records in LEX by small sections and small date ranges at a time, to identify matters where the expert is mentioned. Each ART matter could contain hundreds of file notes and documents requiring review.
- Review of each matter that included mention of the expert to locate invoices from law firms who worked on those matters. Again, noting each ART matter could contain hundreds of documents.
- Review each monthly invoice to determine if there were any legal disbursements that also included the expert’s invoice.
4
The above information would then need to be extracted, compiled and totalled, to produce a document containing the information you have requested. The diversion of resources in such a manner would cause significant delays to the progression of other work within the Legal Operations, Legal Practice and Capability team.
In addition, an FOI officer would then need to review the information, make a decision on the release of the information and draft a decision letter. In total, we estimate that it would take more than 100 hours to process all 4 of your requests.
As previously advised in our Original Decisions, while we acknowledge your request for consultation with the potential to narrow the scopes by a particular date range, Legal Operations have confirmed that this would still substantially and unreasonably divert the resources of the Agency in accordance with section 17(2). Staff would still need to manually search all documents, invoices, emails, and file notes within LEX for internal engagements.
Based on the above, I am satisfied that a discrete document containing the information you have requested does not exist. Further, it would be a substantial and unreasonable diversion of resources for the Agency to produce any such document. As such I have decided to refuse access to your request in accordance with sections 24A and 17(2) of the FOI Act.
Rights of review
I have set out your rights to seek a review of my decision in Attachment A.
Should you have any enquiries concerning this matter, please do not hesitate to contact me by email at foi@ndis.gov.au.
Yours sincerely
Emmanuel (EJC065) Assistant Director – Freedom of Information Information Release, Privacy and Legal Operations Branch Reviews and Information Release Division
5
Attachment A
Your review rights
External 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 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.
Applications for review can be lodged with the OAIC 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 taken by the NDIA in relation to your request. The Ombudsman will consult with the OAIC before investigating a complaint about the handling of an FOI request.
Your complaint to the OAIC can be directed to the contact details identified above. Your complaint to the Ombudsman can be directed to:
- Phone: 1300 362 072 (local call charge)
- Email: ombudsman@ombudsman.gov.au
Your complaint should be in writing and should set out the grounds on which it is considered that the actions taken in relation to the request should be investigated.
1