Freedom of Information request — Notification of Decision

Thank you for your correspondence of 11 September 2024, 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 Stage 2 of your request.

We sincerely apologise for the significant delay in providing this decision on access.

Scope of your request – Stage 2

You have requested access to the following documents:

• “…all information held by the NDIA relating to the National Autism Strategy including, but not limited to:…”

1. communication with and information provided to the National Autism Strategy Oversight/Committee/Council and/or its working groups,
2. communication with and information provided to staff or officials in the Department of Social Security,
3. information given to politicians or parliamentary officials, …”

Extension of time

On 27 September 2024, you agreed to a 30-day extension of time under section 15AA of the FOI Act, making 11 November 2024 the new date to provide you with a decision on access.

access.

On 20 November 2024, the Office of the Australia Information Commissioner (OAIC) granted us a 30-day extension of time under section 15AB of the FOI Act, making 10 December 2024 the new date to provide you with a decision on access.

I sincerely apologise for the delay in releasing Stage 2 of this decision to you. We have been experiencing processing delays and were not able to provide you with our decision by the due date. Consequently, we are deemed to have refused your application under section 15AC of the FOI Act. Therefore, internal review of this decision is not an option. However, your right to apply for an external review with the Office of the Australian Information Commissioner remains protected. Please see Attachment B for more information about your rights of review.

Addressing your request

On 2 November 2024, you agreed to us processing your request in two parts.

On 9 December 2024, we emailed you requesting that you withdraw parts of the scope related to Stage 2 and consider processing these parts as a new FOI request. However, on the same day, we received your email response declining this request. Consequently, we have continued to process this request in two stages.

I note that on 12 December 2024, we provided you with the decision and documents pertaining to the scope of Stage 1, which addressed the following parts of your request:

   “…all information held by the NDIA relating to the National Autism Strategy including,
   but not limited to: …

    4. information and records held within the NDIA, and

    5. relevant information received by the NDIA…”

I note that parts 1 and 2 of Stage 2 of your request seek access to the following:

   “…all information held by the NDIA relating to the National Autism Strategy including,
   but not limited to:

    1. communication with and information provided to the National Autism Strategy Oversight/Committee/Council and/or its working groups,”

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.

I have identified 46 documents, including an attachment, which fall within the scope of your request.

The documents were identified by consulting with relevant staff from the NDIA’s Children’s Taskforce, Parliamentary and Ministerial, and Cyber Security and Resilience branches, who could be expected to identify documents within the scope of the request by conducting searches of NDIA’s systems.

I have also conducted courtesy consultations with other agencies, such as the Department of Social Services (DSS) and Department of Health and Aged Care to seek their views on the contents and disclosure of some of the documents.

I have decided to:

• grant access to 23 documents in full;
• grant access to 22 documents in part; and
• refuse access to one document in full.

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

• 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
• consultation with relevant NDIA staff
• courtesy consultation with other agencies
• factors relevant to my assessment of whether or not disclosure would be in the public interest and
• the NDIA’s operating environment and functions.

Access to edited copies with exempt or irrelevant material deleted (section 22)

I have decided that Documents 1 to 9, 17, 24, 26, 31 to 35, 40 to 42 and 45 to 47 contain material that is exempt from disclosure under the FOI Act.

I have also identified that Documents 1 to 5 contain material that is irrelevant to your request. The irrelevant material relates to information which is not relevant to the subject matter of your request i.e., emails which are not authored by NDIS/NDIA staff.

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

Reasons for decision

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.

Documents 1 to 5 contain information relating to certain operations of third-party organisation, specifically, email address which is not publicly available and releasing this information may disrupt the third-party organisation’s operations, for example, lead to spam, phishing or misuse.

Document 43 contains information relating to certain operations of the NDIA, specifically, internal single points of contact, for use only by NDIA staff in their work, for example, managing complaints made against the Agency by members of the public.

Disclosing internal single points of contact may jeopardise their effectiveness in receiving feedback and complaints. I am satisfied that, if this information were disclosed, there would be 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. I conclude that the 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.

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 states that a document is conditionally exempt if its disclosure under the Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

Paragraph 6.123 of the FOI guidelines states that “personal information” means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

Determining Unreasonableness and Public Interest Considerations

Factors for Determining Unreasonableness

a. whether the information or opinion is true or not and b. whether the information or opinion is recorded in a material form or not.

I have identified material in Documents 1 to 9, 15 and 43 which contain personal information of third parties.

I have also identified material in Documents 1 to 5, 24, 29 to 33, 38 to 40 and 43 to 45, which contain the names and contact details of NDIS staff that have not previously been disclosed to you. I consider these names and contact details to be the personal information of those staff members.

In determining whether the disclosure of this information would be unreasonable, the FOI Act requires that I consider the following factors:

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.

I therefore conclude that it would be unreasonable to disclose publicly this personal information and it is therefore conditionally exempt under section 47F(1) of the FOI Act.

Public Interest Considerations – Sections 47E(d) and 47F

Under the FOI Act, I can only refuse to disclose information which is conditionally exempt if I conclude that it would be contrary to the public interest to do so. Section 11B of the Act sets out what I need to consider and what I must not consider when reaching my conclusion.

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 would promote the object of the FOI Act by providing access to documents held by the government.

I do not consider that disclosure of the personal information in the documents would promote

the other objects of the FOI Act, such as informing debate on a matter of public importance or promoting oversight of public expenditure. Although disclosure of the information would provide you with access to government-held information, it would also impinge on the third parties’ right to keep their personal information private. This is an important right recognised by the Privacy Act 1988 and, given the limited public interest in disclosing the information, I believe it ought to be given the most weight.

While there is limited public interest in the disclosure of information conditionally exempt under sections 47E(d) and 47F, of the FOI Act, the harm that would result from disclosure is that it could reasonably be expected to:

• prejudice the ability of the Agency to protect established contact points and procedures of the Agency; and

• affect an individuals’ right to privacy by placing their personal information in the public domain.

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 1 to 9, 15, 24, 29 to 33, 38 to 40 and 43 to 45 is exempt under sections 47E(d) and 47F of the FOI Act.

Release of documents

The documents for release, as referred to in the Schedule of Documents at Attachment A, 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

Ramya (RMO 260) Senior Freedom of Information Officer Information Release, Privacy and Legal Operations Branch Reviews and Information Release Division

Attachment B

Your review rights

As this matter was a deemed refusal, internal review of this decision is not an option. However, if you have concern with any aspect of this decision, please contact the NDIA FOI team by email foi@ndis.gov.au or by post:

• Freedom of Information Section
  • Information Release, Privacy and Legal Operations Branch
    • Reviews and Information Release Division
      • National Disability Insurance Agency
        • GPO Box 700
        • CANBERRA ACT 2601

Review by the Office of the Australian Information Commissioner

The FOI Act 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.