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Freedom of Information request — Notification of Decision

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Freedom of Information request — Notification of Decision

Our reference: FOI 20/21-0848

GPO Box 700 Canberra ACT 2601 1800 800 110

dis.gov.au

8 September 2021

Shirley By email: foi+request-7402-c676b768@righttoknow.org.au

Dear Shirley

Thank you for your 3 requests of 9 June 2021 under the Freedom of Information Act 1982 (FOI Act) for copies of documents held by the National Disability Insurance Agency (NDIA).

Scope of your request

As per previous correspondence, under section 24(2) of the FOI Act an agency may treat 2 or more requests as a single request if the subject matter is substantially the same; therefore, as previously advised, we have combined your 3 requests into one request.

The scope of this combined request is:

“…a copy of the current NDIA Pandemic Plan and all prior versions. That is, all pandemic plans created by the NDIA since 2013 until Jun 21… …a copy of the NDIA’s NSW specific Pandemic Plan. That is, the NDIS pandemic plan focused exclusively on participants, providers, staff, business activity and physical sites within NSW… …a copy of the NDIA’s State of Victoria specific Pandemic Plan. That is, the NDIS pandemic plan focused exclusively on participants, providers, staff, business activity and physical sites within the State of Victoria…”

Decision on access to documents

I am authorised to make decisions under the FOI Act. My decision on your request and the reasons for my decision are set out below.

I have identified 4 documents which fall within the scope of your request.

The documents were identified by FOI staff and relevant line areas conducting searches of NDIA’s systems, using all reasonable search terms that could return documents within scope of your request. Relevant NDIA staff who could be expected to be able to identify documents within the scope of the request were also consulted.

I have decided to grant partial access to 4 documents.

In reaching my decision, I took into account the following materials:

  • 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;
  • consultation with relevant NDIA staff;

 factors relevant to my assessment of whether or not disclosure would be in the public interest; and  the NDIA’s operating environment and functions.

Reasons for decisions

Deliberative processes (section 47C) Section 47C of the FOI Act conditionally exempts a document if its disclosure 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.

The document within the scope of your request contains deliberative matter in the form of planning, advice, and potential courses of action, responses or mitigation strategies in response to particular pandemic conditions.

As provided in the FOI Guidelines, the deliberative processes involved in the functions of an agency are its thinking processes.

I am satisfied that the information contained within the document falling within the scope of this request is conditionally exempt under section 47C of the FOI Act.

Certain operations of agencies (section 47E(d)) 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.

The document within the scope of your request contains information relating to certain operations of the NDIA, specifically, internal operations related to planning and risk management processes that affect the functions of the NDIA, its operational decision making, and the delivery of services through the National Disability Insurance Scheme (NDIS) during a pandemic.

The disclosure of this information would reveal methodologies the NDIA uses to assist in its operational risk determination in relation to operations of the NDIA and NDIS during a pandemic. That is, the potential considerations and courses of actions that may be undertaken in particular circumstances or in determining strategies to respond to particular pandemic conditions.

I am satisfied that the release of this information would potentially result in the public disclosure of internal methodologies and information that, through improper use, would, or could, compromise internal decision making or affect business continuity planning that would substantially and adversely affect the integrity of the NDIS.

Public interest considerations – section 47C and 47E(d) Under the FOI Act, access to a document covered by a conditional exemption must be provided unless disclosure would be contrary to the public interest.

After considering the public interest factors outlined in section 11B(3) of the FOI Act, I have determined that disclosure of the material identified as subject to conditional exemptions would not provide access to information relating to the applicant. I have considered that:  disclosure of the information would not contribute to the publication of information of sufficient public interest to justify the likely harm caused by release;

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· disclosure of the information would not enhance Australia’s representative democracy in the ways described in section 11B(3) of the FOI Act; and · disclosure of the information 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 and 47E(d), 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; and · prejudice the ability of the Agency to provide guidance on program risks, plan appropriate risk mitigation, and inform the executive in improving decision making, which in turn, helps to ensure the financial stability and integrity of the NDIS.

I note that the NDIA has been forthright in their response to the current COVID-19 pandemic. The NDIA is continually updating their website with further information and advice as needed to respond to particular circumstances as they arise across Australia. There has also been significant outreach undertaken with the participants, providers, partners, the disability sector and NDIA staff in relation to the response to current pandemic conditions.

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.

Access to edited copies with exempt or irrelevant material deleted (section 22) In accordance with section 22 of the FOI Act I have given consideration to whether it would be practicable to prepare and provide to you an edited copy of any of the documents with exempt material deleted.

The document contains deliberative matter that is exempt from disclosure under section 47C of the FOI Act. I have considered whether it would be practicable to edit the document to delete the deliberative matter and produce copies that would not disclose exempt material.

As the FOI Guidelines explain [6.73], factual material may be so embedded in deliberative matter that it becomes part of the deliberative matter and cannot be separated. The FOI Guidelines also explain [3.98] that a common sense approach should be taken in considering whether the number and extent of deletions would result in the remaining document being of little or no value to the applicant or would leave only a skeleton of the former document that conveys little of its content or substance.

To the extent that the document listed in the attached schedule contains factual material, it is so embedded in the deliberative matter that it is not possible to separate it.

I consider that it would not be practicable to produce edited version of the document.

Release of documents The document considered as part of this decision has been references in the Schedule of Documents at Attachment A.

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

Ausilia Woodhead Assistant Director Freedom of Information Officer Parliamentary, Ministerial & FOI Branch Government Division

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Attachment A

Schedule of Documents for FOI 20/21-0851

Document number Page number Description Access Decision
1 1-40 National Disability Insurance Agency Pandemic Plan PARTIAL ACCESS
Dated: April 2015 Exemptions claimed:
s47C – deliberative processes
s47E(d) – certain operations of agencies
2 41-80 National Disability Insurance Agency Pandemic Plan PARTIAL ACCESS
Dated: April 2018 Exemptions claimed:
s47C – deliberative processes
s47E(d) – certain operations of agencies
3 81-120 National Disability Insurance Agency Pandemic Plan PARTIAL ACCESS
Dated: November 2018 Exemptions claimed:
s47C – deliberative processes
s47E(d) – certain operations of agencies
4 121-149 National Disability Insurance Agency Pandemic Plan PARTIAL ACCESS
Dated: March 2020 Exemptions claimed:
s47C – deliberative processes
s47E(d) – certain operations of agencies

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Attachment B

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 foi@ndis.gov.au or sent by post to:

Freedom of Information Section Parliamentary, Ministerial & FOI Branch Government 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 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:

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:

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